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'^L 









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1)1 



f ; . Y 
1 ' 



J 



^ 



THE READING 



UPON 



THE STATUTE ^OF^ USES 

OF '-^^-^ 

FRANCIS MCON, ^^ 

AFTERWARDS 

BABON OF VERULAM, AND VISCOUNT St.ALBAKj 

LORD HIGH CHANCELLOR 

OF 

GREAT BRITAIN. 




9 i^etD o^ttton* 



WITH VERY FULL 

NOTES AND EXPLANATIONS, 

AND A 

COPIOOS TABLE OF THE CONTENTS, 



By WILLIAM HENRY ROWE, Esq. 

OF lincoln's-inn. 

AUTHOR OF 

* OBSERVATIONS ON THE RULES OF DESCENT, AND OK 
OUR law's disallowance of LINEAL ASCENT.* 

L ■ ,'■', ■, , , SBg 

Hontion : 

FRINTID BY W. STRATFORO, CROWN COURT, TEMPLfi BAR| FOR 

"tHE EDITOR, 

AMD &OLD BT 

ALL THE LAW BOOKSELLERS. 

1806. 



< « tf 



Lfrn/.^ir of the 

HUM iTAMfQRD, JR., mi¥Eimrf 

UW DEfARTMEHT. 



a 




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• • • 



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« 



• • • •• 



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•• •• 



. • • 






••• 
• • •• 



To SIR VICARY GIBBS, 

THIS EDITION \ 
I.ORD BACON'S 

READING UPON THE STATUTE OF USES* 

IS 

MOST RESPECTFULLY DEDICATED, 

IN TESTIMONY OF THE JUST VENERATION 

WITH WHICH 
HIS PROFOUND LEARNING^ 

AND 

CRBAT PROFESSIONAL SKILL AND TALENTS, 

ARE REGARDED, 

BY 

his much obliged akd ve&t obedient, 
Friend and Servant, 

THE EDITOR. 



/ : 



Jt(R£FAO£l« 



f r. 






MY Lord Bacon's Reading upon the Statute of Uses— of 
whkh & new. edition is nowr pre^eojted t;o the pro- 
fessjon — sippears to have bee^^iir^t printed in the ^ear 1642^ 
a .period ofabout 16 years after thc^ .death of the learned 
ai4hQ^,; and of about 40 after its delivery to the Society, pf. 
Gfl^h Jnn; and |he numerous errors with which that im« 
pises^io^.of the.w.ork al^puiid^-.ap^ pf si^Qh^a nature sls to 
render it manifest^ not merely that it ppuld not have beea 
printed from a correct copy^ but that the press was hot supert. 
intended by any person* who was in th^Jeast conVersantr 
with the learning of uses. 

In one of those e^^cellent lannotatiohs with which Mc* Har«- 
grave and Mr. Butler have enriched the. before inv^uable 
Commentary of Lord. Coke up(Hx the Tennres of Littjletonj^ 
the former of those gentlemen *^ at the same time that he 
spake in high terms of the excellence of the work itselft 
took notice of the extreme incorrectness of the varjous 
, editions of it ; and accordingly^ when it was next pfin^ed 
amongst his LordshipV other works^ many corrections were 
made* 

. Those corrections are al| preserved in the last edition of 
the work whicJi was .published in the year 1785, and some 
additional ones made*— the persons who had, the management 
of that edition, having had, as. they stated, an oppprtiamty 
of improving the work with the further corrections of a 
g^deman.of considerable l^nowledge and experience^ who 
had made a very attentive perusal of it, and coiirected it iu 
a great number of Instances* 

,The alterations however which first took place in the last 
edition^ merely had in view the removal . of a few palpable 

errors^ and indeed, some of those altjE^rations bave been^ 

' ' • 

41 CatLitt X3« ii ll.44« 

A made 



u PREFACE. 

made with so little judgnuftifp as tft^Wvfe occasioned -a per- 
version of the real meaning • 

* It IS by Ao means th^Wi* of the preseftt^dftorfo detract 
ffom the xk^nt, to wiiich, thtey who prepared that edfttoii 
%r the pr^^s ara in any de^e eirtiflerf; so very cKflfefeht 
*s*fcis disposition towards those persons, '^tthoa^h he? know* 
tfiem not', that as often as he' hats suffered any corteidI<yn!k^ 
which were made in that edttibn ^o rerriafn'ih t?he^ pircisentf,^ 
he has mjUsiice to them inv'ariaWy signified at fheiftot of 
the page where sudh cbrrections occur, that they weteffirsf' 
iksertediri th^ tast editioh. 



The same motives have induced him to place between 
Brackets sb much as he is responsible for of th^ matter ^hich 
it containecf in the inargin of the text, in orider.that it may 
be distihguilhed from what!s to be found in the last edki^n 
also* 

;* Witi respect to the last edition it is farther to be obsferv^, 
tfiat it cbntslins many errort of the same description with 
flibse it has corrected, and that it is without a single note or 
observation of any kind, either to illustrate and explain the 
text where it »s obscure, or to point out wherein any of the 
learned authof'is positions were at variance wfth the 6pinions 
of the other great charaflers of his own day, as wett ias in 
What respect, or td what extent their solidity has been (hakea 
by iftore mbderil determinations. Neither <foes: it contain 
any table of the contents of the work, although such a tabltt 
would have been Vi^ry usefiil j:o tiie reader in hb occasional 
f efibrences to It. 

Thinking that an acceptable service would be rendered* 
the profelSoh .by an edition which wouM amend the in- 
accuracies, ind supply the defers of the former oiwss, llie 
present editor resolved upon the attempt; and! he will hare 
great season to rejotte ia tiH Iab(^nj if in the judgment of 
- the 



PR£FAC£. an 

<|» Ictr^od reader^ Ji^.shaU be thought toh^v^ di|9charge0 
€vmt a JimiU portion of that d^bt which a great lawyer ha^s 
truly saidj every man owes4o the p^4>feffion of which he ^ 
a veiober ; Soii, havii^ Xelt tl^e difficulty of the UA. whirii 
be imposed upon himself, the editiNr has not t)ie ^^J^Jt^ 
cuppose that be has executed it in a mimner «ven borderii^g 
iip^n perfe^Dp a^d much <le6s has lie the f resuniptjoa t^ 
e3y)ect tl^lt it wiU be 40 Teceived. 

The editor confesses however^ that his ambition of being 
tbpm^t to deserve virell of the pro£essio% pf9VKffi$ Juip to 
foster the bppe Chat the present ^edition, akhpagh it jn^ iaIjL 
{short of what might h^ve been achieved l^ greater 4al«alfy 
siriil notwithstanding be found to possess ^ larger share ^f 
ji^erit than those by which it has been pre()eded« ^aiidi^Jiip 
it^ <high an opinion of the candour wd liberality of thf 
jurofessioi^ not to heUeve that the sentiment of Horace, 
est quddam.prodire icnus, siwm datur itUrd, miU suggest itself 
to their minds upon the present occasion. 

Havipg in ^pursuing his course of I^gal study acted, at 
least so far as it is practicable, upon the scriptural masumto 
try all thingssind to hold/aft only that which isgood, the editor has 
ielt little di^^poi^ to iahe j^pon irnst the opinions of other 
men, or to aiccejift alloy :as ,genuine gold, jooejrely becauseit 
iiath>«s sUthiObtained a limited circulation; - On the contrary, 
heiw3 been accuatomed to^examine as to the stability of the 
/pundajliG^ up<vi which the do^rines now in vogue rest, 
^upi4 iitrhetb^ they are recqncileable wiilfa the groMsids and 
j^fiipoipkA ^ more antient tii^s„ . . 

#. • :>..*; . - . >. .1.-. - xh I)'' ,\;. -ti ,'. .> ..'J 
.fr.;Fr49ni^ f^^search iwUch i^af ^fpessary 4opuJt:thQfie 4q^ 
MvimMiff Wi^t,^a conviction hfifi a^ieO'that n^ioy ^f fte$»#Mf 
untenable; and in going tbroMghitt^/oUowii^ ^<^k,.hel9k 
himself compelled to diflfer in many very important instances 
irom ceil^fi gtodewi^ifritesf, l»^t^hen9Vf)r.|t hgs hupf^ed, 
.the afgunif^UTO^teach/sid^of ^e:j^t4i|pttte«|vefe\lMd 

A 2 before 



4v PREFACE. 

i>efore the reader/ and the reasons whkH have! obtdlhed (he 
ascendency in the mind of the editor are pointed but ; ' but 
as it is the opinion which is attacked^ and not the author 
•6f*-^r the person, who has espoused — that opinioni thfe 
editor, where he has had occasion to controvert the arguments 
of IMng writers, has not thought it necessary— but tha*^ it 
'Would have Been rather indelicate— to mention them. by 
liame; or to make a direct allusion to them by ^ .re^ 
ference to their wortis. 

The editor hath alsq in a feW instances ventured io canvass 
the ebncfki^ions of the noble and profoundly learned - atithbr 
himself:- and in order that the imputation of arrogance may 
^not attach upon him on that account, he begs leave to assure 
tiie reader that wherever he has done so, it has beeir with 
feelings of the deepest humiKty : But the truth is, that' in 
most of those instainces, characters so eminent hai^e diflfered 
in opinion, ihat,* as Sir Martin Wright said upon some 
occasion, ' bare authority ought to have Httle or no in* 
f fluence upon the judgment, and a person may ^without 
^ vanity or danger of censure^ lean towards his own under^* 
* standing.* 

There are a few (of what at this period would be cton- 
didered) inaccuracies still remaining in the language ^ but 
the editor held the text to be sacred, except in those places 
where the supposed meaning of the author d^mdnded an 
alteration) and every alteration has beiin made under the 
supposition that had the work been fiifst printed kom ^ 
correct copy, they instead of- now being called for,. wdoU 
have been originally in the first edition. Every alteration 
mko is Jia^ticdatfy pointed 'Oil tiWt^^ atad^*«Kfe'Jim* 

Jjierfectioni vi^hi^ih renlalh/ ar^ ^^ot such toU^yt^^tettt'thb 
sense ifroitti he^g easily c^llielJted. x i; • , . !.> 

.■' It »)|r8t be ddmltt^^ thai in >Mmk^Hit-i\ie ncffts the^«., 
WreA^eB toq^^ yrindples itfeitoiiife fl^ufeat thonwoald 
■-■ ' < ' w\ have 



^ A<» »• w» 



JREPACft. V 

Ivavebedi requkhetocoAvej^ithevsens^to themindsbf many 
readers, but. readers of that description will,, it .is hoped, 
admit the propmety of the ar^unsenls- not- having been pat 
with all tiie point and brevity of whicb they were c^iable, 
ivhenit k considered, that, by jm>1 doing, thej- would have 
been rendered: incompndiensibie /to young students, whois^ 
minds cannot be supposed to possess the necesaaty leading 
ideas upon. the topics discussed. The editor is anxious that 
this 'excuse should be admitted by the learned reader, because 
he knows how very irritating to the mind it is,, to have the 
attention solicited to remarks of inferior moment^ when one 
is eager to get. at the very pith of the argument. 

Conceiving that studied ornaments of stile in law treatises, 
aiHB but meretricious decorations, and that the appeal should 
be to the reason and not to the; ear merely, the editor has 
not wasted his, time by any Attempt of that kind; his only 
aim has been perspicuity, .and with that view he has clothed 
his ideas in the language which first presented itself, and 
consequently, has addressed the reader in pretty much the 
same terms as if he had been discussing the subject with 
h'm in person. 

The fear of being charged w^th the affectation of learning 

and de^p investigation, has not prevented the editor's giving 

9uch references as appeared to him to afford the fullest sane* 

tion to his conclusions, however antient the authority may 

have been,' and one object: which he has not lost sight of, 

k to refer to those- authors ta whose penetratian and discern* 

ment we are indebted for subtle and important distinctions, 

rather than to writers who having borrowed those disti^ic- 

'^ticms withimt any. acknowledgment, have endeavoured to 

' pass^iwhati is their's by adoptioii only, as being the legitimate 

rofisptiiigs ef tiicW own. minds. It is not meant that such 

'trivjal ideas asxouldnot fsai to strike every rejBecting reader 

.ought ^always ta -be referred to their original source ; or that 

it has'beett'done by theeditoc in the present instance,- foi: it 

■ • ^ 4 would 



▼i TREPACf. 

mmM bem^eUr My^ i& mmjcattoB titpMiUti hat (suiiel^ 
vrlisse writers avail IheoMwhres of the ideas of 0llier9<*-«iid 
ui suck* ideas loo as cmM have been ^rst efietted 09i^y hy 
jopei^r faiiid»— ft js eoting* wjoftly not io adifiii tfie eUiga** 
<ion; aodi oeFtai];iiy:it.is a piet« of tcoaditot not die moit 
bofDmuMet, mrhi^retbe object at .no^ ivritert as lo tak« the 
IRrlMiile qmlktodhemselvsas^- ( 

W^era^he notes are Idng, and ibe poiml spolcenof in t&e 
^iaiilia of CKAitebts, doth not coastiiiite the prineifial Better of 
^dbeai^ these ic^ for ^e leader's greater ease> a ^wfecenee^ 

)xot merely to the iiote» bai> to <)he particular pi^ge wsbereta 

the point referred tpj is mentioned; 

The feferences from the table of contents and the naimess 
w£ CBses> are to the pages as marked in the present teditioQ^ 
Jbttt the r^finenees iriim the notes are to the pages cif 4he iast 
cdibioA^ aad nibidh are preserved in the margin of thepresent^ 

I 

The editor cannot avoid remarkiiag upon the gseat tiH ' 
.jconvenience which . results lirom the eU. pages in books of 
established reputation not being continued in the new editions 
of them : A student returns from the courts to his study with 
the chain of reasoning fresh in his 'meiiiory, and aai^ous 
to exaitujie the fiill force and bearing of the authorities 
ivIuGh-^have been referred to upon important cases at^the 
Bar, and by the Bench, but to his mortificatioa finds himself 
.felled in his attempt, in consequence of »hb -being plrovided 
avith the last editicm of the wopk, -when the n eferenoes in 
the Course of the argument have faeen>to the «ld edition* 



• i '. 'V 



•>Pbehioofivenience is Sdlt ify a 4$till :gsfiBims degree in 

pu#<o}ngap<usBt bi law through )thebetik&lkitbefboHe9e of 

pr^citce, for ithe referetices. from. one book to av)othpi''(in 

4RK>st Cases are acoovding. to the |ag6s in the okl edidions; but 

which 3iot being preserved in tbe;new editions,. that xms is, 

in^ possession o4 it becomes neceisar|^ to send half the ^town 

' * over 



dme in ^eftrdhln^ page after pftge fhfi^ilgb 'IfceM^^fi^'edilioif 
heSot^ ar i^ght <5tti be <!itotftidl of 1^ ^H!ic«0ir pai^gtM 
whrcli have b<^ Votidi^A ' Thk incortyettkttce oh sMe- 
coutit of the greitt length of t^ t«luabte • ^te» m tx^ 
tkit edkimi i»f Sir MaUieV^'Hale'^ Historj^ of th^ Ooamioil'' 
jLaw« peciifiafly ^eh<h tfmt' edition^ and reiK^^H fl§ ^if Mt 
value (notwithstanding the opinions of booksellers to the 
coaStmrj) Ihaii It othermse wouM b^; and as ihbre eiHftlbe 
no doubt fiiat another tmpresston of such a trork #itt*lM^ 
caSed fbr/Jtt i^ hoped that th^* karned eciitor t^ll se^ Ihe 
propriety ofietngparefmptor]rwitiiht9 bookseller, Hiiiriisi*^ 
ing that tfae'ofd pages be inserted In tfie margin^ 

i 

An essentia! service would be rendered the pro.fessioii» 
and the farther growth of the evil prevented, if they whose 
mere observations would amount to an injunction, woilM 
pay a Kttle ^ttentioxi to the subject. 

When the editor perceived to^how great a length the notcf 
which he had written extended, lio deemed it pnvient to 
omit so many of them as did not appear to him to be 
absolutely called for by the matter of the text,, and indeed 
to lop off some small ramifications unto which some of the 
notes which are retained had originally extended, from the 
fear, that otherwise the price which it would have been 
necessary to set upon the work might have been objected 
to. 

Widi respect to the present price of this edition, the 
editor begs leave to observe, that although it is so much 
greater than that of the former impressions, yet he trusts 
that it will not be deemed exorbitant, . when it can scarcely 
be expected on account of the very limited sale of such a 
work, that he shall be repaid the expences of printing and 
pubUsbing.. 

Many 



yin PREFACE-. 

Many pftlie notes which ^e^reserve^. coati|in-3<di8cussipil 
of some veryjliiiportant unsettled points arising out of the 
Law of U&es^ and, should, the ^editor be so much flattered 
by the fa>u>urable reception of his notes on the present work 
as to justify a belief that the publication of the former would, 
he acceptable/. he will feel at once happy. 'and proad to 
present t^em to the profession in sqxd/^ othf&r shape. . 



Into die hands of the learned, reader the editor presumes 
to. commit tl^s edition of Lord- Bacon's Reading upon the. 
Sttttuteof U^es^ deeply impressed with t|ie convictipn, that 
-for somuchatf he is responsible^ (and he hath in the course 
of the notes hazarded many observations in .the. way of 
argument^ for which he cannot shelter himself under the 
authority of any former writer,) he stands in need ,of the 
utmost candour and indulgence ; but at the san^e time con- 
£dentf tb^t when the great intricacy and abstruseness of the 
subject is considered, that indulgencQ will nQt not be witli* 
held. 

No, 7. New Square, lAncoh*^ Irm. 
lOthOctobert 1804. 



-• ^ 



Air 



r 



A C T 



OOKGBRMXNC 



USES AND WILLS. 



S7 HENRY Vm. Cap. 10. 



I. 



i. 



Where by the common laws of thisPrtamMe. 
reahn^ lands^ tenements, and her^itaments, 
be. not devisable by testament, nor ought 
to be transferred from one to another, but 
by solemn livery and seisin, matter of re- 
cord, iVriting sufiicient made honafide, with- 
out covin or fraud; y6t nevertheless divers How by Ae 

, ., , ^ conunon law , 

iand sundry imaginations, subtle inventions^, land* ought (» 
and practices have been used, wherebjr the^llli 
hereditaments of this realm have been con-^ 
veyed from one to another by fraudulent 
feoffiiiehts, fines, recoveries, and oth^r assu^ 
ranees craftily made to secret uses, intents, 
and trustSl; and also by vnlls and testaments, 
soihetime made by nude parolx and words, 
sometime by signs and tokens, ahd sometime 
by writing, and for the most part. made by 
such persons as be visited with sickness, in 
their extreme agonies and pains, or at such 
tiihe as they jiave scantiy huA any good me- 

B * tnory 



13 



Sevtfitlocoiivc* 
mciio^eiiauiiif 
lorc^fcyancci^f 
Itndi to.Uiciy 

•tag them W 
Wilb. 



^ t 



AN ACT CONCERNING 

mor y or remembrance 9 at which times they 
being provoked by (PTfedy antf covetous per« 
sons lying in wait about them, do many time^ 
dispose indiscreetly and unadvisedly their 
lands and inheritances j by reason whereof^ 
and %^ j^p^sinon of ^Mdi frwiAiiiei?!^ ^^oiF- 
ments, fines, recoveries, and other like as- 
surances uto iiises,l.ceni}(Jbocet, mnd trusts, 
divers and many heirs have been unjustly, at 
sundry times, 'Hishented, the lords have lost 
their ^^s, iiiarriag^ iieUe&, haori^ts, 
escJjMKitij,. aidap2^ fair J£tz cktoalier^ K put 
ifile^ wfio^er^ and scantly any person can be 
oeitaupJ^ assuiTed of ai^ lands by them piir^ 
chased, nor know surej^ against whom they 
shall u^ their actions^ or executioj[is for their 
rights^ titles, an/d duties ^ also men married 
have, lost . their tenancies by the cotrtesy^ 
womm ttbeir dowers^ mimifest peguries hy 
tital of such secret wiUs and uses haste been 
oommitted; the King'f highness hath Ipst 
4}ie pvo^ts. Mid ^advantage! of the lands of 
pers9mattaiiiled, and of llie lands craf^y put 
in ieofimepts to the jqpiss ^^ aliens bmn, and 
aJso the profits of waste lor a year and a day 
of lands of felons attainted and Ae lords 
tbeir eschaate thereof; aiid mai^ mother in* 
conveni^ces have happened^ ajod daily do 
increase among the King'^i sul;t|eots» to their 

great triable and ioqatietnfssy and to the 
^ • • utter 



'•* 



^ vtitm>wuib^mmm ^ til* ^ApiMfrewiBK^^^l^ 
^ of tlK> i[eaj«i^ lor ;tb^r e;9ftuimig> 9i4: ^€01- 
4 tineoi&toieai of aU jwH^ ^ii)»t(« pi?ii«4^ped 

' eftafiB faev^tqlbf)^, used md mo^fitjam^ in 

^ md 'ftbci^t Ifiwi^ i>f tbe iiiiie,( mi M ^be 

^ his .nl^Q&r <tf thifli' tntoi sbail i|^ ip aoy 
< w]8e>li0m^ter» by. ««0r mow^ or ^wine|^kMK 
■* bedootiv^ damagod ^ iliiFli by r#aftfil|i of 

Ifc au^i^ ^Itew^ the ,Kittg> mP9t i^y^) IMjesty, ^Jj;^"^^ 
t}lftt it;«**y be «»a«|ftl bjrb|»iiigli»#w, 1^ ^^^t*™*^^*'* 

«h<^ Gomni^n^ in. t^b ;pi^9^t fftiJiMitf at . «^ 
fftmble^ : wwi by . tht fm^horily ^^ 
umemet md fwm f^wiogi thiM^ 1^ tp 4«^» 
llAt irtieile niieo^ p^Mtt or fe^eiOM iftsu^^ qr he 
seiaed^ of af m^ tinlo her^fdft^ shsd} hisi^pfnii to 
b^jieiwd of «d|id m wy hOBtfuiiSsOartle^, mutiwa* 
iaadff teoemont^ ,font£f» jervicesi feiifi^rsvni^, 
fern ainderSi or other hfo^iiamenUi t:o, th$ me, 
oonfideoce or tnut of any oth^ par^oiir lor per- 
sons, or of any body , |ii^i»ick> by fWftson, of 
imy baigaM^' sakii^ feofl^neUt/ iiiie^. r^cofery^ 
€ovonvit» eonflact,. aigreetnont^ will> . <)»r other- ^ 
i^nms, by mgf mmsmea^ ^ nitf aM wh4tt9!i;^veF it 
hei. itel in every such cdae^ ^ ^adef^.i^i 
fiecaoti aisd psrsoos^ and bocti^ pol^tc^iii ^t 

b2 have. 



301 AN ACT CONCERNING 

have, or hereafter H^idll have any sudi iise^ mit-t 
fidence^ or trurt, in- fee^siinple, ^f?d4ail9 fot 
' term of life, or for years,' or <otli^wise ; or < siaf 
use, eonfidenoe, 0r trast, iti.^ remainder, or 
reverter,' shait ilom henceforth stand and be 
seised, deemed arid adjudged in }a;wfiil seisin, 
estate, land possession of and in the 'same 
honours, castles, m^ors, lands, tenements, 
rentsi services, ^ reversions, ren^nders, and 
hereditameiits, ym^^ tiheir; apjpurteitaakces, to 
aU'intents^bolistrbctidns, and purposes in the 
law, of and in such' Ifloe estates as <tiey had, 
or shaU havean uise, trdst, or confid^ivs^ of or 
in the same; and thalt tHt estate, vtitte/ right, 
and possession diat was in such person or per- 
sons that were, -or h^direafter shall be seised of 
any^ lands, tenement, or hereditaments, to the 
use, confidence, or tiiist of any such person 
or i^erfeons, or of any 4s>ody p(^i«ick, be froin 
henceforth x^learly deemed and adjudged to be 
in him or them that have, or hereafter shall 
have such use, coififidence, or trust, after such 
quality, manner, fi>rm, and ^ <;ondition . as they 
had before, in or to the use, confidrace, or 
trust that was in thein. . • ^' *• 

Atsuraace maae II. And be it forthcr enacted: by .the antho* 
uteofoaeor rity aforesaid. That where divers andQiairy 

tone of them* « « i ' a i n i j i 

persons be, or hereafter sbatt happen to be 

jointly sei^ of and in! any lands, tenements, 

rents, recensions, reinainders, or <^iier. faececp- 

^^ taments^ 



1»ES AND 'WILLS. . xiii 

tfacrtients^'to'ihe: use, confidence, or trust of 
ariy of tiiiem "tfaat be/ sa jointly sei^ed^ that itt 
eVeiy ttich' case that those^pcriioii or pereons 
ivhich'have w hereafter diall hkye any such 
use, cmifidefiGe er trust m any such lands^ 
t^ileMeiits, rents, reversions, remainders,! or 
hereditameiHts, ehallif om henceforth hare/ and 
Jte- tleemed^ and adjudged to have oily to him 
mt 'Aem iikufc bsve, or hereafter shidl have any 
such use, confidence, or trust, such estate; 
possession, and seii^; ci and in the same lands; 
teaiisineBts, .rents^ ^reyeorsioni, remaind(ens, ' and 
^thef ibe^editanients^ in iikd natiro, - nunnner; 
fiHtn, condition,: and^coiasey as^he or tiiey 
fanot' before> in the use^ confidence, or trust of 
jlhe same . lanSs^ tenemients, or heredi|;iaan^nts ; 
saving andreservhigix) ail and singular persons; stTing of the 
Bad. bodies politick, their b^rs, . and snecessorsi^^.' ®^"""* 
other tbsai those parson or- persons niiiich be 
seized, or herbJhfter shall be seized of iony lands; 
t^iements, or het^tament% to'ariy use, . con* - 
fidence, or trust, alh such right, title, entiy, 
interest, possession, .rents, and action,, as they 
or. any of; them had, or might have had' be* 
i^bre the making of this ad:; 

. III. And dsb saving to all and singular those sayivg of the 
pen»ns, and to their heirs, which be, or here-^l^tiS*.^'- 
aft^sftidlibes^sed-toany nse^ ail siich former 
right, tftle; oitry, interest, possession, renfaa^ 
customs; services, and action^ as they or any 

of 



^ir AN ilCTCQNGEIlIflNG 

4Kf tbem nngfafc baird bad >» 1m or tbrir twm 
proiper uae^ m or to say inantmii kndai U^ 
foments, renta, or htredifaEuiieitts^ jwh/^^eof 
thsy be^ or bferdaftervrflall bte aeiMd t« .ivAy 
o<bcr>uMe^ ai^if this pitMUt acl hadf jltever bam 
bad. adr: mado; rnigr liiiiig MKi^incd. n-l^ 
kcl to tfa^ dOHfaraiy liotwittittabdiiii;. . .> 
:: ^ IV^ And wbe9# ids6 Anneilsi peboona MaaA 
^ and b^ Jwized Df. «ld :m n^ laobdl^ tmm 
f t&^Dts^ Of h^voditaneiits^. *biMM-siBi{deij,i tie 
t iaAb^nviaa, tb >ihfe Be and; mieiit ,tfaat aome 
f' other ^iwm or pennaa ifhaiL bav& and. pei^ 
f roacv0iy€^acfy td tbMi^iand'tO'.bai:^ tineir faeiti^ 
^ me aniuitd -vent/of ac^ lii «r nme^ car less^ out 

* ctf the aame tebda and UpMtientspM^.s&fmt 
' Otbsr pemri -sue odier aamudl .ririt, to hbn 
^ and \iiB assigiti finr letti of bsfe or years> cv 

./> £«r SKMfte Mbar apodal tittle/ ajcoo^ 

* intent and Bse at? batbbem faeit^tofiird dcddi>« 
f ed^ limited^ and made <iher6(S£^> . >' 

Land assured to .' V. Bo H theTcfilr&onaobed by: iho Mitbority 
rent should be jslPoRmsidf Tbiit. wi GviRy fiucb case tbo same 
t^wmtoth^! jmnans, tbeir bafrs« and.Msign^t that baae 
•auth.iusie anrid'iittCfnsft, to barvit and tpetceiYO^ any 
such annusil rents out of any! lai|d% tenensienta, 
or heroAitBnientSy ttiat theyi, and mkvy of them^ 
titieir baic^ land assigns, bo adjudgfei sqd daentt- 
tsd tjo htM po^seKipaaml aeinn of ilbe same 
Mnt> of aiBd » lugfelifed; estate as tb&y had m 
the tide^ iiltaiest^ ;c)D.iiihs..D£ tbe said iteofc or 

profit. 



pjnAt^ and nn if A siffieioA graoi^. cr oAm 
l%wfiil cmi^ey^Me had hem nuidfr. and owcittefi 
to«heia» by flicli ail were tn* flibiii be ^iffad to 
tlie>iise pr ialKnt f^aiif Mfiirfea^ 
iBade^ or pud aoaiunli«i> to 4bii naigr trMliaod 
intcntt tlieraofi nad iihflt ii^ fuifl.iarwy tm^ 
petsm Mid pasma aaihaHi^ ArteMaftrr tMi 
kare^ aaef tMe, tm^ sumI intensst Jo AriH) ftnj^ 
anobjceat or lurcrffaU tibatt JanMly #stMiii) /^ 
wmif9999aB^}o£^midm§ti md'^HmrsQym 

aad faaw all otbar anti^ aolrici^ andrfemedief 

aotitaUj aivl tca^^^igriBitdita theoi^ mlh i^nfi* 
fioBBt xlaaies aif 4tflntaf|, j»rm*fy^ or .^dttw? 
lame, tasooadiof to jadi oanditioMb 9iata> ^ur 
Mfer things Jinjiiii anil aifipoiirtfid apan itha 
jnd iaUak f ar {{a^Bnenfc Or lunetgr >fif »^ 



VjL And be at^£Hftar eoMtad ^bjrrthp «!«. Awomuidudi 
liMntjr afi]frsakl> lint iriieecsaiifiafnfieQHiwrjoiflt^ and 

Wfod of .and in dmcB laodi^ Moanents, and 
hereylitaiiients unto them and to thcar flaiaea, 
atad to jdie heittof the faaabaad^ ier .to the hui^ 
haimi^ and to the 9rife» i^>te ithe heati of 
^faeh* tm> bedkii begotten^ wt to Ae hen lof 
of tlmr bedfas b^gotteBy «Qr4olhe baOnnd, 

tenn 



XW AN ACT CONCERNING 

lertti 6t life of th^' said wife ; or Vfbev^ suiy 
ka^h €8tate> 6v purchase of anj lands, tene^ 
mehts, or helr«ditamenti$> hath beefn, or here^ 
aftei: shall te made to anj huiband^ and to 
his wife, in Manner £ind form abbre expressed) 
OF to ^y other person oi^ persons^ and to their 
iieirs and a^ssignSj to the use and behocf of the 
said hui^foand and wife^ or to the use of the 
wife, as is before rehearsefd, for the jointer 
irf* the wife ; thttt then in every sadi case^ ^ery 
woman married, having such jointer made^ t>r 
hereafter to be made, di^U not claim, nor have 
title to have any dower of the residue of the 
lands, tenements^ or hereditaments, that at 
any time c were her said husbands^ by whlnn 
she hadi any such jointer^ luir shall demand 
nor claim her dow^' of and against them that 
have«*tl)e lands and inheritances of her said 
husband^ but if she have no such jointer, then 
she shall be admitted and enabled to pursue^ 
have, and d^odand her dower by writ of dower^ 
after the due course and^ order of the commoit 
. laws of this realm ; lliis act, ^ or. any liaw or pro« 
vision made to the. contraiyf thereof notwitb^ 
standing. . - 
A woman shau - VII. Provi^^d alway« That if any sucb 
whoM jointer ^woiiKaii bc lawftillv cxpulsed,- ' or evicted ftoiii 

It recovered* v . ^ 

l)er said jointer, or from, any part thereof, witb* 
.out any fraud or covin, by lawfrd entry, Action^ 
or 1^ .disQoniamance ictf ker husband^rt^a 
»T . 4 every 



USES AND WILLS. xyg 

every such woman shall be endowed of as much 
of the residue of her husband's tenements or 
hereditaments, whereof she was before dowable^ 
as the same land$ and tenements so evicted 
and expulsed shall amount or extend unto. 

VIII. Provided also. That this act, nor any 5^o»«» *l"f*®'- 
thing therein contained or expressed, extend, 

or be in any wise hurtful or prejudicial to any 
woman or women heretofore being married^ 
of, for or concerning such right, title, use, 
interest, or possession, as they or any of them 
have, claim, or .pretend to have for her or 
their jointer or dower, of, in, or to any manors, 
lands, tenements, or otlier hereditaments of 

y 

any of their late husbands, being now dead or 
deceased ; any thing contained in this act to 
the contrary notwithstanding. 

IX. Provided also. That if any. wife have, a jointer after 
or hereafter shall have any manors, lands, tak^nTi^use/ 
tene^xents, or hereditaments unto her given ^ ^ ^^* 
and assured after marriage, for term of her 

life, or otherwise in jointer, except the same 
assurance be to her made by act of parliament, 
and the said wife after that fortune to overlive 
her said husband, in whose time the said jointer 
was made or assured unto her, that then the 
same wife so overliving ^hall and may at her 
liberty, after the death of her said husband^ 
refuse to have and take the lands and tene-* 
ments so to her given, appointed, or assured 

c during 



KTm AN ACtCOaCEKmUG 

Anrmg the coverture, for term of her life, or . 
Wherwise in jointer, except the same assurance 
be to her made by act of parliament, as is 
Wbresaid, and thereupon to have> ask, demAnd> 
and take lier dower by writ of dower, or oth^- 
Wide, according to the common law, ^ and 
itt hit such lands, tenements, and h^redita^ 
inehti* sts her husband was and stood seizred of 
any fetate of inheritance at any time <kiring the 
I Coverture J any thing contained in this a€t ta 
the contrary thereof notwithstanding. 
Thi» statute X. Provided also. That this present act, or 

shall extinguish r ^ 

no statute or re-anv thill J? hcrciu containcd, extend, nor be at 

cogoizance> &Cr . 

any time hereafter interpreted, expounded, or 
taken to extinct, release, discharge^ or sui^nd 
atiy statute, reeogni^aftces,^ or other bond,, by 
the execution of any estate, of or in any lands^ 
tenements, or hereditaments, by the authority 
of this act, to any person or persons, or bodies 
politick ', any thing contained in this act to the 
contrary thereof notwithstanding. 

^ XI. And forasmuch as great ^mibiguities 
^ i^nd doubts tttUy kr'tm of the TUlidity a&d in- 
* validity of wilb het>etofope made of any land% 
' ' teft^ittentSi a«d heirediframeiit^, to the grearit 
' trrtible of tlie King's Subjects y the King'& 
most royal majesty minding the trdnqniUiQr 
and rest of his loving subjects, of his most 
excellent and accustomed goodness is pleased 
atid contented that it be enacted by the Mk 

thority 



USES AND WILLS. ^ xJX 

tijority of this present parliament. That aU^i;^JJ;f,^j; 
manner true aod jqst willi? and testaments J^jJ'^^jy*^^^'' 
heretofore made by any person or persons de*><^^«^* 
ceased* or that shall decease before the iir$t 
day of May, . t()at sh^ll be iu the year of puf 
l^ord God 1536, of any lands, tenements, or 
other hereditaments, siaall be taken £^nd ac- 
cepted good and effectual in the law, after suql) 
/asl^ion,* n^aoner, and fprm ^s they were com* 
monly t^ken and psed at any time within forty 
jears next afore th^ making of this act^ any 
thing contained in. this. act, or in the preamble 
thereof or any opinion of tlie common law to 
the contrary thereof notwithstanding- 

XII. Provided always, Tliat tlie King's highr ^^^^ ^°'^ 
ness sh<all not have, demand, or take any adr '!«^'> and h»r- 

' '' noti, ihall be 

vantage or profit for, or by occasion of the paid to the King, 
executing of any estate, only by authority of 
this act, to any person or persons, or bodies 
politick, which now ha^e, or on this side the 
3aid first day of May, which shall be in the 
year of pur Lord God 1536, shall have any 
use or uses, trusts, or confidences in any 
manors, lands, tenements, or hereditanaents 
holden of the King's highness, by reason of 
primer seisin, livery, ouster U main^ fine for 
alienation, relief or haxriot ^ but tl^at fines for 
alienations, reliefs, and harrigts, shall be paid 
to the Kijig's higlmess, and also liveries, and 
ouster Ic mains i^all be sued fpr use^, trusts, 

Q% and 



« 



XX AN ACT CONCERNING 

and confidences to be made and executed in 
possession by authority of this act, after and 
(rom the said first day of May, of lands, and 
tenements, and other hereditaments holden of 
the King in such like manner and form, to 
all intents, constructions, and purposes as hath 
heretofore been used or accustomed by the 
order of the laws of this realm. 
Other Lords, ' XIII. Provided also. That no, other per* 

fines, reliefs, 

»ndharriots. SOU or pcrsons, or bodies politick, of whom 
any lands, tenements, or hereditaments be, 
or hereafter shall be holden mediate or im- 
mediate, shall in any wise demand, or take 
. any fine, relief, or harriot, for or by occasion 
of the, executing of any estate by the authority 
of this act, to any person or persons, or bodies 
politick, before the said first day of May, 
which shall be in the year of our Lord God 
1536. 

Cestui que usi XIV. And bc it cuacted by authority afore- 

may take all -j T-i . ii j • i j 

such advantages said, 1 hat all and Singular person and persons, 

at his feotfees iii* i**i i*i ^ • i* 

might hive had. and Dodies politick, which at any time on this 
side the said first day of May, which shall be 
in the year of our Lord God I5.S6, shall have 
any estate unto them executed of and in any 
lands, tenements, or hereditaments by the 
authority of this act^ shall and may have and 
take the same, or like advantage, benefit, 
voucher, aid-prayer, , remedy, commodity, 
and profit by action, entry, condition, or 
otherwise, . to all intents, constructions, and 

purposes. 



USES AND WILLS. xxi 

purposes, as the person ov pei^sons seized to 
their use of or in any such lands, tenements^ 
or hereditaments so executed, had, should, 
might, or ought to have had at the time of the 
execution of the estate thereof, by th^ au- 
thority of this act, against any other person 
or persons, of, or for any waste, . disseisin, 
trespass, condition broken, or any other of- 
fence, cause, or thing concerning or touching 
the said lands or tenements so executed by the 
authority of this act. 

' XV. Proviided alsq, and be it enacted by Acts^w now 
the authority aforesaid. That actions now de- 
pending against any person or persons seized 
of or in any lands, tenements, of heredita- 
ments, to any use, trust, or confidence, shall 
not abate ne be discharged for or by reason 
of executing of any estate thereof by authority 
of this act, before the said first day of May, 
which shall be in the year of our Lord God 
1536, any thing contained in this act to the 
contrary notwithstanding* 

XVI; Provided also. That this act, nor anyWirdiiuptii. 
thing therein contained, shall not be prejudicial/^/w#/i, of apy 

now bcins with'* 

to the King's highness for wardships of heirsin ase, er of fuu 
now being within age, nor for liveries, or for**** 
ouster le mainsy to be sued by any person or 
persons now being within age, or of fiill age, 
of any lands or tenements unto the same heir 
or heirs now already descended ; any thing in this 
act contained to the contrary notwithstanding. 

XVII. 



^n^tlTe" -X^JI- Provided ^ajsp, aqd be it ena^te4 by 

King's use x:on- the autJiM>rity ajfore«ajd. That all and singulaif 

vcriM, fefQgiuzances heretofore knowledged;^ taken, 

or n^ftde to tha King's u^, fpr or concerning 

fltf3y feooveriea of e^ny lands, ten^n^entf^ ot:. 

h^^ditapiei^ts heretofore sued or, had, by writ; 

or writ$ pf epitry upqn disseu^p in le po^l, ^all 

fron^ h^iicf forth be utterly void and of none 

«fr$ptx to all intent«9 congtmctions, and pnr^* 

pofiej, 

Estattsof XVIII. Provided also. That thi^ ao};, nup 

ladds executed 

to pjrson? bori^ afly thing therein contained, be in any wise 
prejudicial or hurtful to any person or person? 
horn in JVals^i or the marches of the ^Bxoe^ 
which shall have any estate to them eajecut^d 
by aijthority of this act, in any lands, tene^^ 
znent^^ pr other hereditaments within this 
realm, whereof any other person or persons 
DOW stand, or be seised to the u;5e pf any such 
person or personp born in Wales, or the 
^mfirches of the same; but that the same per^ 
son or persons born in Wales, or the marches 
of the same, shall or may lawfully have, re- 
tain, and keep the ^ame lands, teii^Bents, or 
other hereditanaents, whereof estaj^ jhall be 
(50 unto tlKPm executed by the authority of thifi 
^t, according to the tenor of the same j any 
thing in this act contained, or any other act 
or provision heretofore had or made to the 
- :contrary notwithstanding. 



I 

I 



FOR r*JROLLM£Nt itm 

Of BARGAINS afid SALES* 

27 HENay VJU. Cap. 16. 

j31£ it enacted by the authority of this present 
parliament, That from the last day of July, 
tvhich shall be in the .year of our Lord God 
l5S6i.no manors, lands^ tenements, or other 
hereditaments, shall pass, alter or change from 
one to another, whereby any estate of inherit- 
ance or freeliold diall be made or take effect in 
any person or persons, or any use thereof to 
be made'ji by reason only of any bargain and 
sale thereof, except the same bargain afid sale 
be made by writing indented, sealed and in-* 
rolled in one of the K.ing*s courts of record at 
Westminster, or else within the same county 
or counties, where the same manors, lands, 
or tenements^ so bargained and sold^ lie or be^ 
before the Custos llotulorum^ and two justices 
x>{ the peace, and the clerk of the peace of 
the same county or counties, or two of them at 
the least, whereof the clerk of the peace to be 
one; and the same inrollment to be had and 
made within six months, next after the date of 
the same writings indented j the same Custos 
Rotulorum, or justices of the peace and clerk, 
taking for the inrollment of every such writing 
indented before them^ -where the land com- 
'^rised in the satne writing, e^^ceeds not the 
yearly value of forty shillings, Ss^ that is t6 

'4 ^y 



Xxit FOR INROLLMENT OF 

I 

say, l^d. to the justices, and I2d. to the clerk; 
and for the inrollment of every such writing 
indented before them, wherein the land com- 
prised exceeds the sum of 40s. in the yearly 
value, 5s. that is to say, 2s. 6d. to the said 
justices, and 2s. 6d. to the said clerk for the 
inrolling of the same. And that the clerk of 
the peace for the time being, within every such 
county, shall sufficiently inroU and ingross iii 
parchment the same dee^ds or writings indented 
as is aforesaid, and the rolls thereof at the end 
of every year shall deliver unto the said Custos 
Rotulorum, of the same county for the time 
being, there to remain in the custody of the 
said Custos Rotulorum, for the time being, 
amongst other records of every of the same 
counties, where any such inrollment shall be 
so made, to the intent that every party that 
hath to do therewith, may resort and see the 
effect and tenure of every such writing so in- 
rolled. 

II. Provided always. That this act, nor any 
thing therein contained, extend'^to any manor, 
lands, tenements, or hereditaments, lying or 
' being within any City, Borough," or Town cor- 
porate, within this realm, wherein the mayors, 
recorders, chamberlains, bailiffs, or other of- 
Acer or officers, have authority, or have law- 
fully used to inroU any evidences, deeds, or 
other writings, within their precinct or limits^ 
any thing in this act contained to the, contrary 
notwithstanding. ; 



[ .25 ] 

INTRODUCED OR CITED 
CASES. 



A 



A. 



DAMS V. Savage, 209, 

220, 221, 224. 
Archer's case, 157. 
Attorney General ». Sir 

George Sands, 87. 

6. 

Baldwin and Flower, 176. 
fianbong and Lusher, 245. 
Barker against Keat, ] 50. 
Basset and Morgan, v, 

Manxel, 113. 
Batty ». Trevill ion, 144. 
Beckwith's case, 239, 244, 
- 246. 
Bedford's (Earl of,) case, 209, 

211, 221. 
Blake and Perrih, 228. 
BIythe and Colgate, 83, 244. 
Bonis and Holland, 179, 184. 
Boys and King, 199. 
Brent's case, 104, 141, 205. 
Bucknall's case, 148. 

C. 

Callard V. Callard, 133. 

Carew and Lloyd, 234. 

Carier v, Franklin, 1 87 , 

Ceasar and Springe, 230. 

Chudleigh's case, or Dillon 
and Freine, 1, 5, 10, 20, 
96, 113, 118, 119, 132, 
136, 150, .151, 155, 156, 
157, 166, 168, 183, 211, 
223, 224, 226, 236. 

Clarke v. Smith, 232. 

Clere's j(Sir Edward) case, 
142, 143, 144. 



Clough and Clough, 243. 
Colgate and BIythe, 83, $244* 
Collardr. Collard, 138. 
Cooper V. Franklin, 186, 

187. 
Corbet's case, 11, 83j 85, 

86. 
Cornish and Goodright, 215, 

214, 216. 

Cosin and Tippin, 210. 
Crawley's case, 205, 206. 
Cromwell's (Lord) case, 1 86, 
187, 189. 

D. 

Dacre's (Lord) case, 11, 84^ 
98, 103, 113. 

Da vies v. Speed, 210, 312, 
232, 234. 

Delamer's case, 9, 16, 91, 
161. 

Dillon and Freine, or Chud- 
leigh's case. See Chud* 
leigh's case. 

Drury v, Drury, .243. 

E. 

Edge and Scattergood, 214, 

215, 217, 219. 

^- • 

Finch's (Sir Moyle) case, 91. 
Flower and Baldwin, 17€. 
Franklin and Carier, 187. 
Franklin and Cooper, 186, 
187. 

G. 

Goodman v. Goodright, 214. 
m ^ Ui>odnght 



C «8 ] 



/ . ^- 



STATUTES SPOKEN OR 

Year 
Henry III. 62. Marlebridge, 25, 109, HQ. 

Edward I. 7. stat. 2. De Religiosis, 25, 109. 

— — 18. - - ^uiaempt. terr. 21, 38, 97, 98. 

Edward III. 50. cap. 6. 25, 26, 29, 107, 111, ir2, 113, 114. 
Richard II. I. cap, 9.26, 113, 114. 

2. 3. stet. 2. 26, 29, 118, 114. 

— 7. \1. Provisors, 23, 76. 

^ 7. ^12.26. 

15. 5. Mortmain, 23, 25, 27, 29, 76, 196, 

108, 115. 

7. 27. 

3. Stat. 2. 75. 

3. 27. 

5. 27, 

4.24, 102. 

1.17, 25, 28, 53, 37, 48, 51, 52, 85, 
91, 104,, 106, 116, 146, 163, 1S6^ 
188, 189. 

1.28. 



Henry IV, 4. 

Henry V. 2. 

Henry VI. 11. 

11. 

1. — J5. 

Richard III. l .' 



Henry VII. 1. 



3. 4. 117. 

-^ __ 4.— 17. 28, 84. 

1 1 . 20. 5 1 . 

— — — ~ 19. 15.29,113. 

Henry VIII. 21. 19. 149. 

23. 10. 29, 69, 127, 12*. 

26. 13.50. 



— 27. 



32. 



16. Statute of Enrolment, 41, 124, 125, 

174. 
28. 52. 



.— 32. ind 34th of Wills, 45, U^. 

Elizabeth 31. 12. 90. 

Charles II. 12. 24. 1 10, 1 43. 

2P 3. 89, 208, 237. 

jGeorge II. 14, 20. 237. 



READING 



VPOK THE 



ST^TVTB OF USES, 



21 HENRY Vin. Cap. lo. 



m 



1 



Hare chosen to read upon the Statute of Uses T^< ifttiodat' 
ihade 27 Hen. VIII. a law^ whereupon the mheritances 
of this realm ar^ tossed at this day, like a ship upon > 
the tssLj in such sort, that it is hard to say which hprk 
will sink, and which will get to the haven ; ibit is 
to say, what assurances will stand good, and' what / 

will not. Neither is this any lack or default In the "^ 
pilots, the grave and learned judges: but the tides 
and currents^ of jreceired errors, and unwarranted i^nd 
abusive eitperience have been so strong, as they were 
hot able to keep a right course according to the law, 
so as this statute is in great part as a law made in 
the parliament, held 35 Reginae ; ^ for in 37 Reginse, « P. »» 
by the notable judgment upon solemn arguments of 
all the judges iassembled in the Exchequer-chamber, 
in the famous cause between Dillon atid Freine, con* 
ceiming ah assurance made by Chudleigh, this lawChudldf^V 
began to be reduced to a true and sound exposition, p^L'71?'"'* 
and the false and perverted exposition,^ which had * ^^* 3*^ 
continued for so many years, though never counte- 
nanced by any rule or authority of weight, but only 
entertained in a popular conceit, and put in pra6lice 
at adventure, grew to be controled ; since which 
time, as it cometh to pass always upon the first re- 

B / forming 



2 READING UPON 

forming of inveterate errors, ittany doubts tod per- 
plexed questions have risen, which are not yet re* 

duiS2S.f ^^' solved, nor the law thereupon settled > the consider- 
ation whereof moved me to take the occasion of per- 
forming this particular duty to the house, to see if I 
could, by my travel, bring the exposition thereof to 
a more general good of the common-wealth. * 

Herein, though I could not be ignorant of the dif- 
ficulty of the matter, which he that taketh in hand 
shall soon find ; or much less of my own inability, 
which I had continual sense and feeling of; yet be- 
cause I had more means of absolution than the younger 
8ort, and more leisure than the greater sort, I did 
think it not impossible to work some profitable effeS; ; 
the rather because where an inferior wit is bent and 
conversant upon one subjed;, he shall many times 
with patiences and meditation dissolve and undo many 
of the knots, which a greater wit, distra&ed with 
many matters, would rather cut in two than unkhit : 
and at least, if my invention or judgment be too bar- 
ren or too weak ; yet, by the benefit of other arts, 

* ^» J« I did hope to dispose or digest the authorities or • opi- 

nions which are in cases of uses in such order and 
method, as they should take light one from another, 

[Author's pro* . though they took no light from me. And like to the 

nadsag stated.] matter of my reading shall my manner be, for my 
meaning is to revive and recontinuetbe ancient form 
of readixfgjj which you may see in Mr. Frowicke's 
upon the prerogative, and all other readings of an- 
cient time, being of less ostentation, and more fruit 
, than the manner lately accustomed : for the use then 

was, substantially to expound the statutes by ground* 
and diversities ;, as you shall find the readings still 
to run upon cases of like law and contrary law ; 

whereof 



THE STATUTE OF USES. ' 3 

whereof the one includes theleammg of a ground^ 
the other the learning of a differences ami not to stir 
conceits {a) and subde doubts, or to contrive a mul- 
titude of tedious and intricate cases, whereof all, 
saving (me, are buried, and the greater part of that 
one case, which is taken, is commonly nothing to the ' » 

inatter in hand ; but my labour shall be in the ancient 
course, to open the law upon doubts, and not to 
open doubts upon this law. 



EXPOSITIO STATUTI. 



THE exposition of this statute consists, upon the [Matter to be 
matter without the statute : upon the matter within 
the statute. 

Three things are to be considered concerning the 
statute, and all other statutes, which are helps and 
inducements to the right understanding of any sta- 
tute, and yet are no part of the statute itself. 

1. * TTie consideration of the statute at the com- * P. 4. 
mon law. 

2. The consideration of the mischief which the 
statute intendeth to redress, as also any other mis- 
chief which an exposition of the statute this way or 
that way n^y breed, 

3. Certain maxims of the common law, touching, 
exposition of statutes. 

Having therefore framed six divisions, according [Author's dm- 
to the number of readings upon the statute itself, I j^. j 
have likewise divided the matter without the statute 
into six introdu£tions or discourses, so that for every 
day's reading I have made a triple provision. 

(a) The word conceits was first substituted for concise in the 
last edition, 

B 2 l.A 



4 READING UPON 

([Author*! diti« 1 • A prefoce or introduftion. 

"ea.f ^' '*^ -• ^ division «Pon the law itself. 

3. A few brief cases for exercise and argument* 
The last of which I would have forbom ; and, ac« 
cording to the ancient manner, you should bare taken 
some of my points upon my divisions, one, two, or 
more, as you should have thought good ; save that I 
had this regard, that the younger sort of the bar'were 
not so conversant with matters upon the statutes ; and 
for their ease I have interlaced some matters at the 
common law, that are more familiar within the books. 

1. The first matter I will discourse unto you, is 
the nature and definition of an use, and, its inception 
and progression before the statute, 

2. The second discourse shall be of the second 
spring of this tree of uses since the statute. 

3. The third discourse shall be of the estate of the 
assurances of this reahn at this day upon uses, and 

#P,5. ^ what kind of them is convenient and reasonable, 

and not fit to be touched, as far as the sense of law 
and natural constru6l:ion of the statute will give leave; 
apd what kind of them is convenient and meet to.be 
suppressed. 

4. The fourth discourse shall be of certain rules 
and expositions of laws appUed to this present pur< 
pose. 

5. The fifth discourse shall be of the best course to 
remedy the same inconveniencies now a-foot, by 
construction of the statute, without ofTering violence 
to the letter or sense. 

6. The sixth and last discourse shall be of the best 
course to remedy the same inconveniencies, and to 
declare the law by aS; of parliament : which last I 
think good to reserve, and not to publish. 

4 DISCOURSE 



THE STATUTE OF USES. 



DISCOURSE I. 

THE nature of an use is best discerned (a) by [Of the nature 

considering what it is not, and then what it is ; for ^^ ^g, J"***" 

it is the nature of all human science and knowledge 

to proceed most safely, by negatives and exclusives, 

to what is affirmative and inclusive. 

First, an use is no riorht, title, or interest in law ; ^'"^» netatifdy 

what an uie it 

and therefore master attorney, who read upon this not. i Rep. iii« 
statute, said well, that there are but two rights : case* 

Jtis in lie : Jus ad rem. 

The one is an estate, which is Jus in re; the other 
a demand, which is Jus ad rem : but an use is neither ; 
so that in 24 H. YIII. it is said that the saving of theBro. FeeflTm. 
statute of 1 R. III. which saveth any right or in.'^"*«'P^-4o. 
terest of intails, must be understood of intails of 
the possession, and not of the part of the use, be- 
cause an use is no right nor interest. So * again, *P«^* 
you see, Littleton's conceit, (b) that an use should 
amount to a tenancy at will, whereupon a release 
might well inure, because of privity, is controled ' 
by 4 and 5 H. VII. and divers other books, which ^^ *^ks. 

K H. VII e 

say that cesiuy que use is punishable in an action of 15 H. vii.*s» 
trespass towards the feoffees ; only 5 H. V. seemeth J h.V.^J '^' 
to be at some discord with other books, where it is 
admitted for law, that if there be cestuy que use of an 
advowson, and he be outlawed in a personal action, 
the King should have the presentment ; which case 
Master Ewens, in the argument of Chudleigh's case, 

(£?) [See Note 1.] (*) [SeeNotcS.] 

did 



6 READING UPON 

JWhat aa ute did seem to reconcile thus : where cestujf que use, be- 
ing outlawed, had presented in his own name, there 
the King should reinoTe his incumbent ; but no s,uch 
thing can be collected upon that book ; and there* 
Dyer, !!• fore I conceive the error grew upon this, that be- 
cause it was generally thought that an use was but a 
pernancy of profits ; and then .again because the law 
is, that, upon outlawries upon personal actions,, the 
King shall hare the pernancy of profits, they took 
.that to be one and the self-same thing which cestui/ 
que use had, and which the King was intitled unto : 
which was not so ; for the King had remedy in law 
for his pernancy of profits, but cestuy que u^e had 
Yearbooks. none (c). The books go further, and say, that an 
^niyui'itiz. ^*® ^^ nothing, as in 2 H, VII. det was brought and 
counted sur leas for years rendering rent, He. The 
defendant pleaded in bar, that tlie plaintiff nihil 
hahuit in tenementis {d) tempore dimisstonis: the 
plauitiff, made a special replication, and shewed 
that he had an use, and issue joined upon that; 
wherefore it appeareth, that if he had taken issue 
upon the defendant's plea, it should have been foutid 
Dy.215. b. against him. So again in 4 Reginae, in the case of 
• P. 7« the Lord Sandes, * the truth of the case was a fine 

levied by cestuy que use before the statute, and this 
coming in question since the statute upon an aver- 
ment by the plaintiflF qu4>d partes fivis nihil habuertmt, 
it is said khat the defendant maiy shew the special 
matter of the use, and it shall be no departure from 
the first pleading of the fine ; and it is said farther 
that the averment given in 4 H. VII. quod partes finis 

-f (r) [See Note 3.] (</) in iencmentis^^i added in the latt 
edition. 

niht^l 



THE STAttlTE^OF USES; fj 

fnhil habmrunt^ nee in possessioncy nee in usUy was [whttaauif !• 

ousted upon this .statute of 27 H* VIII. and was no 

more now to be accepted : but yet it appears, that 

if issue had been taken upon the general averment, 

without the special matter shewed, it should have 

been found for him that took the averment, because 

an use is nothing. But these books are not to be . f 

taken generally or grosly ; for we see in the same 

booisf when an use is specially alledged, the law 

taketh knowledge of it ; but the sense of it is, tkat : 

an use is nothing for which remedy is given by the 

course of the conunon law, «o as the law knoweth it^^ ( 

but protects it not \ and therefore when the question \ 

Cometh, whether it hath any being in nature or 

conscience, the law accepteth of it ^ and therefore 

littleton^s case i$ good law ; that he who hath but Co. Lie. %ju 

forty shillings firee-hold in use, shall be sworn in an JercL ji ' *'* 

inquest, {e) for it is ruled fecundum dominium na^ 

turale^ and not fecundum dominium legifimumy nam 

natura dominies est^ qu4a fructum ex re percipit^ 

And jsome doubt if upon subsidies and taxes cestuy 

^ue use should be valued as an owner : so likewise 

if cestuy que use had released his use unto the feoffee 

for six pounds, or contracted with a stranger for the 

like sum, ther^ is no doubt but it is a good condition 

or contract whereon to ground an action upon the 

case ; for money for rel^ise * of a suit in chancery* p- *• 

ifi a good quid pro quo i therefore to conclude, though 

an use be nothing in law to yield remedy by course 

of law, yet it is somewhat in reputation of law and 

conscience : for that may be somewhat in conscience 

which is nothing in law, like as that ms^y be some- 

(0 [See Note 4.] 

thing 



S READING VfOiJ 

[Whit ihttsfeis ihitig in law which is nothing in conscience ; a^, tf 

the feoffees had made a feoffment over m fee, bona 
jfde, upon good consideration, and, upon a suhpenut 
(/) brought against them, they pfleaded this matter 
in chancery, this had been nothing in conscience^ 
fiot as to discharge them of dstmagcfej. 

A second negative fit to be understood is, that anf 
use is no covin, nor is it a collusion, as the word is 
now Used ; for it is to be noted, that Where a man 
doth i^move the state and possession of land, or 
goods, out of himself unto another upclti trust, it 
, is either a special trust, or a general trust. 
y^ The special trust is either lawful or unlawful. 

The special trust unlawful iis, [g) according to the 
case, provided for by ancient statutes of pernors (A) 
of the profits ; as where it is to defraud creditors, or 
to get men to maintain suits, or to defeat the te- 
nancy to the pnedpey or the statute of mortmain, or 
the lords of their wardships, or the like ; and those 
are termed frauds, covins or collusions. 

The special trust lawful is, (t) as when linfeofFsome 
of my friends, because I am to go beyond the seas^ 
or because I would free the land from some statute,- 
or bond, which I am to enter into, or upon intent to 
be reinfeofFed, or intent to be vouched, and so to 
suffer a common recovery, or upon intent that the 
feoffees shall infeoff over a stranger, and infinite the 
♦ P. 9« * Uke intents and purposes, which fall out in mtrxs 

dealings and occasions : and this we call confidence, 
and the boc^ do call them intents ;*but where^ the 
trust is not special, nor transitory, but general and 

(jQ [See Note 5.] (f) [See Note 6.] (>i) The word/<fr»flr/ 
was first added in the last edition, (/) [See Note 7.] 

permanent 



» 

* 



THE STATUTE OF USES. 9 

'^^tnanenty there it is an use ; and therefore tfaiese 
three are to be distinguished, and not confounded ; 
the covin, confidence and use. 

• So as now we are come by negatives to the affir- [What aa use 
mative, what an use is, agreeable to the definition in i Rep. 121. 
Howden 352. Delamer's case, where ^ is said : ^0$^)^^ 

An use is a trust reposed by'any person in the terre- Deiwner's case. 
tenant, that he may suffer him to take the profits, Dy. i86. 
and that he will perform his intent. 

• But it is a shorter speech to say, that 

Ususest dominium fiduciarmm : Use is an owner-^ 
ship {k) in trust. 
So that usus K stdtusy sive possession pottos differunt 
secundum rationem Joriy qtuim fecundum naturam 
ret, for that one of them is in court of law, the other 
in court of conscience ; and for a trust, which is the 
way to an use, (/), it is exceeding well defined by a 
civiKanof great understanding ! . 

Fides est obligatio conscientia unius ad intentionem \ 

(dterius. ^ ^ . 

And they have a good division likewise of rights : 
Jus precarium :' Jusjiduciariurn: Jus legttimum. 

1. A right in courtesy, for the which there is no 
remedy at alL 

2. A right in trust, for which there is a remedy, 
but only in conscience. 

3. A right in law. 

^ So much of the nature and definition of an use. • p. io« 
It foUoweth to cMsider the parts and properties The puti aad 
of an use: wherein by the consent of all books, asJJ^^**® ** 
it was distinctly deBvered by Justice Walihsley in 
S6 c^ Elizabeth : That a trust (m) consisteth upon 
three parts : 

' [i) Olvnershifi was in the last edition substituted for Owner's 
life. ^/) [See Note 8.] (w) [See Note 9.] 

C The 



.t 



^ 



10 REAPING UPON 

The partt. The &f at, th^it; the feofFc^e will suffer iihoi hoSbm to 

ta^e tbe profits. 

The second, that the f^Qo^ qpon requesl o£ tbQ 
feoffor, or notice of bis will^ wiU execute tbe estates 
tQ ttie feoffor, or bis heirs, or wy o^tbef 1^ hSm 
direction. ' 

The third, that if the feoifee be diaisieiBeci, and so 
the feoffor di$t^rbe49 the fepflee will i^-^ent^r^ or 
bring an* action to re-continue the possesion ; so that 
those three, pernancy of profits, ei^eqution of e^tes, 
an4. defence of the land, s^re the tbree points of 
trust. 

Tliepiopertici. The properties of itB use are exceeding weU set 
foi^th by F^iner, justice in tfaf^ same casej and tb^y 
be three : 

1 . Uses, saitb he, are created by confidence^ : 

2. Preserved by priyity, which is nothing else but 
a continuance of the confidence, without interrupt 
tion: and 

3. Ordered and guided by conscience : either by 
the private conscience of the feoflee ; or the general 

' conscience of the realm, which is chancery. 

The two foraier of which, because they be mat* 

* ters more thoroughly beaten, and we shall have oe^ 

<;asion h^eafter tp handle them, we will not now 

dilate upon: 

* P. ti. ^ Bu^ ^h^ third, we will speak sOQiewhat of; both 

aSr^tS"*' because it is a key tfy^ open niany ef the true reasons, 

fuii^^by cQix- and learnings of uses,\and because it ta;ideth to dc- 

notmwthc^ cide our great and principal dpubts at this day. 

SoniT^*^"" ^^^® soKcitpr, entring into bis ajpguwient of 

Chudleigh's case, sajd sharply and fitly : '* I wiU 

^^ put never a case but it shall be of an U0e,t for an. 

". use. in law hatb. np. feltqw ;" miBaiUDg, tbaf: tbe learo- 



THf STATUTE OF USES. 1 1 

bfr of mm k am to be m&tohed wtib dfb^r lean^n^. [Ttiif ttk«» W 
Aaijlettoii, chief jtfitide, inr the ttgumMl «yf tte s^me goideii <)y ton- 
case, did traljond profotiikdly cofitfdt thd tutg^^jf^^.^'^l^ 
tcyj^d ooilclsted upon B E. IV. that thete might be J?*^^",**^ J^***^' 
JNMvem»yf«lim(n) of an ude ; for be satd, that it was Vctr'bbok. ^ 
ho more but that the chaficifellor iv^uld coristtk with ^pitx. Abn'tlt; 
tbe ndea of \kw, wheie the ibteittian of the portieg did bi^^ab/ th " ^ 
not ipecialty appeur ; and tkerefore the frivate con^ feoff, d utet '33. 
ottt| whidi Oluiville^ jusiaoe^ disd in the 48 ReginsB^ 36.3^'' ''^'^ 
in the case of Corbet^ in the oOdonmi pleaa^, of one \^^\\^ 
of lincohntf Ino^ whom he named not, bat seemed 
toalkw, iftnotMiindi wbiehwas, that an nsttWaa 
but an imitatioii, (u) and did ensue the nature of ^ 
poAsesaion {0). 

Tbk vtiy c6nceit was sfet ««i fdot in 27 H. VIII. Yw book. 
in tba Lord Daoire's caae^ in whioh time they begaii 9J10!*' 
to heare at usea: lor dieteffdler the reabn had iMfiy 
ages together put in u«e the pafi«age of ii6^d by will, 
tbey bi^an to drgUe that ai^' user i^as not deris^able, 
(^) but thdt it <Ud ensue the nature of the hind I and 
tho same yMc after^ this statute was made -, so that 
this opinion seemeth ever f o be a prelude and for^ 
mnoer to te act erf paiiiament touching uses ; and 
tf it be so meant now, I lihe it well : but in the mean 
time the opinion itsdf is to be rgected ; and be-^ 
eause, in tlie same case of Corbet, tbr^ reverend 
judges of tbe cotirt * of common pleas did deiavei' « p. ». 
and publish their opinion, though not directly upon 
tlie point adjudged, yet obiter as one of the reasons- 
of tbeir judgineut, that an use Of inberitance could 
not be limited to cease ; and again, that the limita- 

(«) [Sec l<ifote^ 10.] (») [See Noffc !(>.] (0 [See Note 1 1.J 
<A)tSceNo<€l!2.] 

C 2 ^ tion 



12 READING UPON : 

J5Srcd*!Si*^ * tipii; of a new use could not be to a stxanger ; (f) 
guided j)y con- rulipg qses iqerely according to the ground of potk 

•cienceanddo ... .iiii . % t 

not ensue the sess^on ; It 1$ worth the labour to examine that learti^ 
j^urepfposws-ing,- By 3 Hen. Vn. you may coUect, that if the 
[Year book, fcoffees had been disseised by th&conunoo law, aikl 

3Hen.VJI, ij. „ , ^ -^ \ , , , 

Bro. Abr. tit. an ancestor collateral of cestui/ que use had fdeased 
pi^jj^^' untQ the disseisor, and his warranty bad attached 
\x)fOfi.c€Stuji que user, y^ the chancellor, upon tha 
matter shewed, would hai^ no respect unto it, to 
• compel the. feolTees to execute the estate unto the 
disseisor: for there the case being, that ^stujf 
que use in tail having made an assurance by bsat and 
recovery, and by warranty which d^^cended upon 
his issue, two of the judges held, that th^ use is not 
extinct ; and Bryan and Hussey, that held the con- 
trary, said, that the common law is altered by the 
new statute ; (r) whereby they admit, that by the 
common law that wairranty will not bind and ex^ 
tinguish [s] a right of an use, as it will do a right of 
possession ; and. the reason is, bectose the law of 
collateral warranty is a hard law, and not to be con- 
year book, sideredin a court of conscience. In 5 Edw. IV. it 
^ ' ' ^' is said, that if cesimf que use be attainted, query y 
who shall have the suipmna^ (t) for .the lord shall 
not have the suipcsna ; so as there the use doth not 
imitate (z^) the possession; and the reason is, not 
because the lord hath a tenant {v) by title ; for that 
is nothing to the subp^iay but because the fsoifor^a 
(r) intent was never to advance the Im'd, but only 
his own blood ; and therefore the query of the book 

(?) [5ee Note 13.] (r) [See Note 14.] (j) extinguish was 

substituted iox extinct in the last edition. (/) [See Note 15.] 

{y) [See Note 16.] (v) [See Note 17.] (0 [See the two^ 

pr thfee concluding lines oif Note 17.] 

arisetl\ 



THE STATUTE OF USES. 13 

ariselh) urbat the tarast ^ ttid totifidenoe «f t^ fecfflb^ *'^' is- 
did tye him to do, as ^liether he sho<akl not sell the ordemi nd 
land to die ttse of the feoffor*s (c) Tnll, or ^w/im tt^«af P ^^*22!to 
So fikvourably they took the intent m tboie days, not ensue tha 
as yoo find in 37 Hen. VL that if s( manhad ftppoiv/t-^ slons.]** *'**^*. 
ed his use to one for life, the remainder in fee- to^?^-^'^^',^^^^^ 
juiother, and c^smy que use for Me had refns^^ be- subpoena pU x.] ^ 
cause the intent appeared not to advance t^ heir at 
all, nor him' in reversion, presently the fecMSee should 
have the estate for life of him that refused, some 
ways to the behoof of the feoffor. But to proceed 
in some better Order to^^ards the disproof of this 
opinion of imitation, (u) there be four points wh^neia 
we will examine ibe nature c^ uses. 

1 . The raising k^ them. 

2. The preserving oi them. 

3. The transferring of them. 

4. The extinguishing of them. 

1. In all these four, you shall see apparently that [Thataia 
uses stand upon their own reason^, utterly differing from cues of 
from cases of nossessibn. I would hav6 one casfeP®"""*®"*. ^ 

* ^ . proved i. in the 

shewed by men teamed iii the law, where there is anisiagof uses.] 
deed, and yet there needs a consideration ; as for 
parole, the law adjudgetfa it too light to give action 
without consideration ; but a deed ever in law im- 
ports a consideration^ because of the deliberation 
and ceremony in the confection of it : and therefore 
in « Reginse {w) it is solemnly argued, that a deed [sharington «. 
should raise an use without any other consideration. s^«<>n» Wow.; 
In the Qjueen'f'case a false consideration, if it be of, 
record, will hurt the patent, but want of considera- 

(r) [Sec the two or three concluding lines of Note 17.] ' 

(») [See Note 16.] (w) [See Note 18.] 

tion 






H BEADHVO .UPON 

rotfrneif tkRi dottb mmxi bun k; vtAyt* they sty dtat «t 

^K'^B^^^v 'w^m%am ^aaA^ 

tif^iuitnrinnt ^^ i^ ^^^ & b]»ble ftnd iiglbt; thing ; and now^ cdn^^ 
^SS'crf'iittO *>*iw*^> * i^ »e6aooeth to H^^tr^btter tban any tUi^ 
« ?4 i4* dse : for you cawiot wei^ it up to faUe il| moilhef 
by d«ed^ nor deed inroUtoly witito<|t. the \teiglH of a 
eonsidefation ; but yon ^hidl Qj^er< find a x^aadii i^ 
thkl to the worUTs ^d^ in tfae law : But it is ana* 
9on of cfaanoery^ rad it m. tl»4 ; 

That m> towt of e^meimce witt, in&fce <fenil|Ni 

gratuitumy thotigk tb^ intent appoar oerer so ck«r«« 

tf I where it is not executed , or svffipiQntly passed 

byl^; (ir)but if mofiey had lle^n pud^ and so n 

person daoani&ed^ or that it ^a^ for the establ^tomit 

of his house, then it i»a good matter m the chancery^ 

So again I would see in the iaw^^ a casd wh^re s man 

shall take by a conveyance, ba it by deeds U^^y » ^^ 

word, (if) that is not par^y to the grant : I do not say 

that the delivery must be to him that takes by the 

4ci^> for a deed may be delivered to one m|tn to 

the use (0) <rf asK)ther. Ndthcsr do I say that he must 

be party to the deUvery of the deed^ ftH* he in the 

remainder may take though he be iiot pasty ; but he 

must be party to the words qf the grant : herf again 

the case of the use goeth singtei and the reason is, 

beca^ise a conveyance in use isn^hio^ but a publL<* 

cation of the trust ; and tjbieri^re so as th^ party 

trusted be declared, it is not material to whcnn th&. 

pub}icati(n] be. So much {(x the raising of uies* 

Now as to the jMre^ecving of tbem. 

njiet utterly ^* Thare is no cMe. ia the common h^w, wh^eiir 

S^^^on?" ^^*^ aimpiy and nakedly is arterial to mslke a, 

proved, secondiy>covin, or particcps criminis; and therefore if the 

in the pretervmg 

fi*u«»-J (*)[S€Q Note 19.3 O') [See NoteSOj (»> [Sec Note 21.) 

heir 



THE 8EATUTE OP USES, |5 

heir wHichis by descent, infeofF one which lutd tioiice 

of the disseisiii, if be wer€( not a disseigor de facto, 

it is nothing : so in 33 H. VI. if a feoffinent he made Yearbook. 

upon coUugion, and feoffs makes a feoffinent over 33 H. vi. 5. 

f upon good consideration, the collusion is discharged, « p. 15. 

and it is not material if they had notice or no. So 

as it is put in 14 H. VIII. if a sale be made in a [Yw boojL 

market overt upon good consideration, although it'*^*^^"-'*] 

<be to one that hath notice that they are stolen goods, 

yet the property of a stranger is bound ; {a) though [Vesr book. 

in the book before remembered 33 H. VI. some ojiine llo^^brTtit ^* 

to the contrary, which is clearly no law; so in CoUmtoft «i4 



SI . E. DI. if assets descend to the heir, and he alien 
it upon good consideration, although it be to one 
that l^td notice of the debt, or of the warranty, it is 
good enough. So 25 Ass. p. 1. if a man enter (b) of 
purpose into my lands, to the end that a stranger 
which hath right, should bring lAs^pracipe and evict 
the land, I may ent^ notwithstanding any such te* 
covery; but if he enter, having notice that the 
stranger hath right, and the stranger likewise having 
notice of bis entry, yet if it were not upon con- 
federacy or collusion between them, it is nothing ; 
and the reason of these cases is, because the common 
law looketh no farther than to see whether the act 
were merely actus JkHiS infrauiem legis : and there.* 
fore wheresoever it findeth consideration given, it 
dischargeth the covin. 

But come now to the case of use, and there it is [Yearbook. 
otherwise, a» it is in 14 H. VIII. and 28 H. VIO. BtrkSff. 
and divers other books ; which prove that if the fe- ** »»?» p*- »<>• 

, ana Dyer y, b. 

ofibe sell the hmd for good ccHisideration to one that to 13. t.] 

{a) [See Note 22.] (^) [Sec Note 23. J 

hath 



IQ / READING UPON 

hath ndUce, the purchaser shaB stand seized to did 
ancient use ; {e) and the reason is, becftuse llie chan^ 
cary lo^eth fSstrther than the comoKm law, namely^ 
to the corrupt conscience <tf him that will deal in the 
land, knowing it in equity to be another's ; and 
therefore if there were radio: amaritudinis, the co&* 

*P. i6. sideration * purgeth it not, but it is at the peril o£ 

him that giveth it : so that consideration, cur no con- 
sideration, is an issue at the .common law; but- 
notice, or no notice, is an issue in the chancery. 
And so much for the preserving of uses. 

[Utetvtteiiy 3* For the transferring of uses» there is no case' 

rf^'tSr* ^ l»«^ '^^^by «» »^*'°° « transferred, biit ^ 
pipved, thirdly, subpama in case of .use {d) was always assignalde ; 

iDg of Mes.] nay farther, you find twice 27 H. VIIL fol. 20. pla; 9. 
and fol. 29. and pla. 2L (e) that a right of usenKiy be 
transferred : for in the former case Montague maketh 
the objection, and saith, that a right of use can* 
not be given by fine, but to him that hath the pos- 
session ; Titz-Herbert answereth, Yes, well enough ; 
query the reason, saith the bode. 

And in the latter case, where cestuy que use was 
infeoffed by the disseisor of the feoffee, and made a 
feoffment over, Englefield doubted whether the 
second feoffee should have the use. Fitz-Herbert 
said, *^ I marvel you will make a doubt of it, for 
" there is no doubt but the use passeth by the feoff- 
" ment to the stranger, and therefore this question 
" needeth not to have been made." So the great 
[Pftwr. 346, difficulty in 10 Regina;, Delamer's case (/) where 
^^**^ the case was in effect tenant in tail of an use, the re- 

mainder in tee ; tenant in tail made a feoffment in 

(0 [See Note 24.] (d) [See Note 25.] W [See Note 26.] 
(/) [See Note 27.] 

4 fee; 



• THE STATUTE OF USES. 17 

fee; tenant, by the statute of 1 R. III. and thefe^^J^^^^r 

..'•;., . differ from cisei 

otfee lufeoifed bimin the remainder of the use, ^mioof potsettiooy 
made it over; and there question being made^ whe-^^t,^^g 
thertbe second feoffee should have the use in re*®^"*^*l 
mainder, it is said that the second feolSee must needs 
have the best right in conscience ; because the first 
feoffee claimed nothing but in trust, and the cestuy 
* qi4e 2^56 cannot claim it against his sale; but the*!**!?* * 
reason is apparent, as Wias touched before, that an 
use in esse was but a thing in action, or in suit to be 
brought in court of conscience, and where the sub^ 
peenayrz$Xo be brought against the feoffee, in pos* 
session to execute the estate, or against the feoffee 
out of possession ' to recontinue the estate, alway^ 
the subpama might betransfei^red ; for still the action 
at the common law was not stirred but remained in 
^the feoffee ; and so no mischief of maintenance or 
transferring rights. 

Aiid if an use being but a right may be ads^ed, 
and passed over to a stranger, h multo/oritori, it may 
be limited to a stranger upon the privity of the first 
conveyance, as shall be handled in another place : 
and as to what Glanvile, justice, said, he could 
never find by any book, or evidetice of antiquity^ 
a contingent use Umited over to a stranger; I answer, 
first, it is no marvel that you find no case before 
E. IV. his time, of contil>gent uses, where there be 
not six uses in all ; and the reason I doubt was, meii 
did choose well whom they trusted, and trust was well 
observed : and at this day, in Ireland, where uses be 
in practice, cases of uses come seldom in question, 
except it be sometimes upon the alienations of te^ 
nants in tail by fine, that the feoffees will not be 
brought ta execute estates to the disinheritance of 

D anciezit 



li ' READING UPON 

apcient blood. But for ejpperienos ii^ the eepvey^ 
ance, j^bf»^ was npthing mpre uisi^i in QbitSf thap i% 
will the use qf t))e land to certitin persoos s^ivi tbeir 
heirs^ so long a3 they sliall pay the chaj^tf y pri^st9 
their wages, and in defaiilt of payfp^t tp limil th^ 
y^ Qver to other persons apd their heirs; «nd so, m 

♦ P. iS. * cj^se of forfeiture, through many degree ; and 9ucl| 
conveyance^ are as ancient as R* II. bis time. 

rtrKtntterly 4. jsfow for determijiing and extimruishing of 

liffer from cues ^ /» ® ^ . 

^f poMesaion> uses, I put the ca^e of collateral warranty before, and 
f^^?^^' to that the notable ease of 14 H. VIH- Halpwy'a 
tiiigttisiuiicntof ^,j^^ where this very point was as in the prin^^ipal 

[Haipcny*t pase ; for a rent (g) out of land, and the land itself 

YcarVok- ^^ ^^*^ ^^ possession, ca^not sta^nd together, but tb^ 
S4H. viu. 4* ygjji- gj,^ |j^ extinct ; but there the cs^ is, that thq 

use of the land and the use of the rent sh^ stand 
yirell epough together ; for a rent charge was granted 
by the feoffee to one, that had notice of the use, a^d 
ruled, tbat the rent was to the apeieAt use, and both 
pses were in esse simul K semel : and though Bjrud^* 
nell, chief justice, urged the ground of possession to 
be otherwise, yet he was over-ruled by the other 
three ji;stices, and Bropke s^id uj^to him, be thought 
he argued much fpr hU pleasure. And to conclude, 
we see that things pi^y be avoided and determined 
\}y the ceremonies and ^cts, lijce unto those by which 
^hcy jire created and raised ; th^t which passeth by 
livery ought to be avoided by entry ; that wh^cH 
passeth by grant, by claim ; that which passeth by 
way of charge, deteri^ineth by way of discharge; : 
and so an nise which is raised but by a declaration or 
limitation, piay cease by words pf declaration or 

U) CSe« Note 58.1 

limitation, 



THE StAtUTfi dP USES; lA 

Bmhaitidrt, as Ihe ciril htr sdth, in his fftagts cm- 
^enianeum est, giiam iit itsdem modis res dfssohaniut 
^'SmU coiUtitudntur. 

For the inception atnd tJroGfteSskm of tses, 1 have {ptthc'wetf^ 
for a precixteitt in thenl searched other laws, becatrs^ grestioB of uiet 
states and commonwealths hzive common accidents ;,4tutc, and 
and! find in the civil law, that that which cometh *»«"">» ^"^» » 

' to a precedent 

' ♦ tiearest in name to the nse, is nothiitg Kke in matter, for them.] 
which i^ nsus/mctus : for usmfructus iC d<nniniuin ♦ F- »9» 
is with them, as with us piartictilar tenancy and m- 
faeritance. But that which resembleth the use most Cont». «g(m. 

de'JudiciUy BJH 

hjldei comtn{ssi9, (A) and therefor^ you fehall find in i. qip. 5, 
Justinian, lib, St. that they had a form in testaments, 
to gite ifrheritamJe to one to the nise of another, 
Hieredem constitua Caium ; fdgo autem te, Caie, ui Jjf'* *• *• 

■^ 7, y Tit, !• 

haredilaiem testituas Scio, And the t^t of the ci- 
vilians saith, that for a 9te^t tiihe if the heir did fiot Domat, torn. |. 

' ° lib. 5. tot. 3. 

as he was required, cestm/ qu^ use [i) had no remedy 
at all, until about the time of Augustus Caesat ther^ 
grew iff cMstoix^ a flattering form of trust, for they 
petlned it thus : Rogo te per saluieyn Augiistij or pet 
/ortundtn Aiegitsiiy Kc. Whereupon Augustus took 
the breach of tru^ to sound in dei'Ogatlon of him* ^ 
srff, and xtaAe a rescript to ihepr^iar to give re* 
flaedy in such cases ; wbefTeujpon within the space of 
ft hundred years, these trusts dfd Spring and speed so 
frst, as they werd forced to hate a particular chan- 
cellor only for uses, who was called praetor fdet^ 
tammmariwf; and not long after, the inconvenience 
cf them beiug found, they resorted unto a remedy 
ttiQch Bke unto this statute; for by two decrees of 
aenate, called stenatus-consuitum J^rebetliafium X Pe^ 



1 1 



(Ji) [See Note ^fl^. J (/) [See Note 30J 

I) 2 ' gasidnum,! 



fiO HEADING UPON 

Xp£ thj laap- gasiomm, they made cesiuy que use to be heir in tub« 
sretiionof uMs .Stance. I have sought likewise, whether there b^ 
«anite, ud any thing which maketh with them in ourlaw, and 
herein, fint, ai j g^j ^1^3^^ Perfam, chief baron, in the argument of 

to't precedent ' ' ^ 

forAe».] Chudleigh's case, compareth them to copyholders, 

^ j, J and aptly for many respects. 

, First, because as an use seemeth to be an h^redir 
tament in the court of chancery, so the copyhold 
seemeth to be an hereditament in the lord's court. 

» P. 2O0 • Secondly, this c(H)ceit of imitation {u) haA been 

troublesome in copy-holders as well as in uses ; for it 
hath been of late days questioned, whether there 
should be dowers, tenancies by the courtesy, intails, 
discontinuances, and recoveries of copy-holds, in 
the nature of inheritances, at the common law ; and 
still the judgments h^ve weighed, that you must have 
particular customs in copy-holds, as well as par* 
ticular reasons of conscience in use, and the imita* 
tion (u) rejected. 

And thirdly, because they both grew to strength 
and credit by de^ees : for the copyholder first had 
no remedy at all agaipst the lord, and was as tenancy 
at will. Afterwards it grew to have remedy in 
chancery, and afterwards against their lords by tres- 
pass at the common law ;« and now, lastly, the law 
is taken by some, that they jbave remedy by ejecttone 
firmly {k) with a special custom of leasing. So no 
doubt in uses : at the first the chancery made ques* 
tion (/) to give remedy, unti)^uses grew more general, 
and the chtincery more eminent; and then they 
grew to have remedy in conscience : but they could 
never obtain any manner of remedy at the common 

(») [See Note l€.] (/) [See Note 31.] (/) [See Note 32.1 

laW| 



THE STATUTE OF USES. gi 

Jtw, neither agunst the feoffee, nor i^aiost strangers; 
but the remedy against the feoflee was left to the 
suiptma i and the reniedy against strangers to the 
feoffee. 

Now for the causes (m) whereupon uses wei« put [Of thg innp. 
in practice, Coke in his reading doth saj well, that imaion ofutM 
they were produced sometimes for fear, and many J^J^ '*'• ^ 
times for fraud (n). But I hold that neither of these l>aaD,iecaiidI)', 
causes {pi) were so much the reasons of uses, as an- eruto,] 
other reason in the beginning, which was, that the 
lands by the copunon. law of England were not tes- 
tamentary* or deviseable; (o) and of late years, •''•*»- 
since the statute, the case of the conveyance for 
sparing of purchases and execution of estates ; and 
now last of all an excess of evil in mens minds, affect- 
ing to have the assurance of their estate and possession 
lo be revocable in their own times, and irrevocable 
after their own times, 

Nowfof the commencement and proceeding of [O' »•" "■«p- 
them, 1 hare eonsidered what it bath been in coursepuiMoruM 
of common law, andwhat ithath beeu in course ofiututc, udia 
statute. For the common law the conceit of Shel-j^^J^^^ 
ley in 24 H. VIU. and of PoUard ui 27 H. VIII. ""="'» «»"»« 

1 1-1 1 1 . I of common 

^eem^Q to me to be without ground, wmch was, law.j 
that the use succeeded the tenure ; (p) for after that [f^'pK"^; ''' 
the statute of Sua emptorts terrarum, which was '*'" ^'^ 
made 18 E.I. had taken away the tenure between the 9,10.] 
feoffor and the feofiee, and left it to the lord para- 
mount; they said tliat the feoffment being tbea 
merely without consideration, should therefore in- 
tend an use to tlie feoffor ; which cannot be ; for 

(i») Cauifs wai first lubsiimted Tor caies in the lait edition. 
<«) [See Note 33.J (e)[S«eNote34.] (/) [Se« Mote 35.] 
by 



dfi 



READING I/PON 



rofthcincep- by tbftt re£Mofiy. if the feoffiiient before the titatntB 
te»ic» iHiei ^^ ^^^ jnade tenendum de tapUalihu domim'sj as it 
before the must be, (f) there should hare been an ttse unto Ae ' 

■tatute, andm t» rt* -i n i a i • 't* 

lUs place, tsto feoffor before that statute. And again, if a grant 
maltlTSIttr' fa^^ y^^ien made of such things as consist not in* 
of ffunmonUw.] tennre, as adrowsons, rentt, viHeins, and the like, 
thiepe sbonld have been an use of them, wherein the 
law was quite contrary ; for after the time that uses 
grew ccnnmon, it was nevertheless a great donbt 
whether things that did lie in grant, did not caity 
a consideration in themselves because of the deed. 

And therefore 1 do judge that the intendment of 
an use to the feoffor, where the feoftnent was made 
without consideration, grew long after, when usesr 
* P. 12. ♦ waxed general ; (r) and for this reason, because 

when feofiinents were made, and that it rested doubts 
. fill whether it were an use or a purctese, because 
purchases were things notorious, and uses were 
things secret, the Chancellor thought it more con- 
t^nient to put the purchaser to prove Ms considera- 
tion, than the feoffor and his heirs to prove the trust ; 
and so meade the intendment towards the use, an(f 
put the proof (s) npon the purchaser, 
ay H. vm. 9, And therefore as uses were at the common law in* 
Doctor and^ud* ^^**'^'*> ^^^ whatsoever is not by statute, nor against 
part2.c«»2. law, may be said to be at the common law; andf 
both tbe genqral trust and the special, were things 
not prohibited by the law, though they were not 
remedied by the law ; so the experience and practice 
of uses were not ancient; and my reasons why I 
thiBk so, are these : 

f f ) [ See Kotr 36. J (r) [See Note 3t .] (x> [See Note 3d.l 

First, 



THE STATUTE OF USES. ^ 

FU*st:, I cstnnot find iu any evidenije before king [pi tbelaccp* 
R, H, Iw time, the clause ai t^m *f «ww, (0 9Xid ^^^^^ 
the very Latin of it savouretb of that tixne ; for in ^J^**^ . 
ancient tioie^ about £dw. I. hiis timei and before^ tbt« place, a» t» 
when lawy^s were part ciriiians, the Latin pbraae mentiA comw 
Vf^ much purer, as you may see by Bracton's writ^ of «PWM»iw^»* 
ingt and by ancient patents and deeds, and cUefiy 
by the register of writs, which is good Latin; 
wherein this phrase, ad opus i( usum^ tod the. words, 
ad opUtSp is a barbarous phrase, and hke enough to 
be the penning of some chaplain that wa« not niu<;b 
pai»t his grammar, where he had found i^pus H usm 
coupled together, and that tl)ey did govern an abia* 
tive case : as they do indeed since this statute^ for 
they ta|;e away t^e land aud put tbcim iato a con* 

yeyance. 

* Secondly, I find in no private aft of attainder, * p, ^|. 
the clfiuseof forfeiture of lands, the words, *^ whidh 
** be l^tb in possession or in use," until Ed. IV .*s 
reign. 

Thirdly, I fiud the word " use*^ in no statute 
until 7 Rich. H. cap. 11. 0/ pnymays, and in 
15 Rich. Of rmrtmainm 

Fourthly, X coUeQ; out of Choke's speech in Yearbook; 
8 Edw, IV. where he saitb, that by the advice of all * ^^- *^* ^ 
the judges it was thought that the subpimoi did not 
lie against the heir (u} of the feoffee which was in by 
law, but cestu^ que iisei was driven to his bill in par* 
liament, that us^. even in that tinde were but in their 
infancy ; for no doubt but at the first {v) the cfaai^ery 
made difficulty to give remedy at all, and did leave 
it to the particular conscience of the feoffee : but after 

(0 [Se« infr^ 24, Not« 41-3 (*) [See Note 39.] {y) [See 

iupra20. Note 32.] 

the 



J4 kEADING UPON 

JOfi&eincep. tlie chancery grew absolute, as may appear by the 
2^°^Pf;,^ statute of 15 H. VI. (w) that complainants in chan- 
before the cerv should enter into bond to prove their sus^estions^ 

ftitute, and m , / , , , , , , ^ , . , 

tills place, at to which shcwcth that the chancery at that time began 
ntnth^'^^^' to embrace too far, and was used for vexation ; yet 
of otmaiottlaw.] nevertheless it made scruple to give remedy against 

the heir being in by act in law, though he were 

privy ; so that it cannot be that uses had been of any' 

great continuance when they made that a question i 

as for the case of mainmonii pralocutij it hath no 

affinity with uses ; for wheresoever there was remedji^ 

at the common law by action, it cannot be intended 

to be of the nature of an use. 

[SAn.pl.iBro» And for the book commonly vouched of Z Ass. 

uiel; pU »*o! * where Earl calleth the possession of a conuzee upon a 

^^y^^* fine levied by consent and entry in autre droits and 

44 £d. III. »5, , -^ . "^ . ' 

Bro ubi top. * 44 of E. in. wher6 there is mention of the feoffees 

IT 

•*P.a4. that sued by petition to the King, they be but im- 

plications of no moment. So as it appeareth the 
first practice of uses was about Richard 11. his time ; 
(r) and the gi*eat multiplying and overspreading of 
them was partly during the wars in France, which 
drew most of the nobility to be absent from their 
possessions ; and partly during the time of the trouble 
)»nd civil war between the two houses about the title 
of the crown. 

,f Of the incep- Now to conclude the progression of uses in course 

p«ii^ ITlit^ of statutes, I do denote three special points. 

SthS^^^ 1. That an use had ^never any force at all at the 

•ion of una in common law, but by statute law. 

lututei.] 2. That there was never any statute made direct- 

ly for the benefit of cestuy que use, as that the descent 

(w) [See Note 40.] (*) [See Note 41.] 

4 of 



tHE STATUTE OF USES. 25 

%t an u^ shouM toll an entry , or that a release should tp^ the incep- 
be good to the pernor of the profits, or the like ; gmrion of usesw 
bat alukrays for the benefit of strangers and other per- ^^ ^^J^ 
ions airainst cestuu que use. and his feoffeeil : for"®" ^^^ "* 

course of iu« 

though by the statute of Richard III. (y) he might mtet.] 
alter bis feoffee, yet that was not the scope of th^ 
statute, but to make good his assurance to other 
persons, and the other came*in ex obliquo. 

• 3. That the special intent unlawful tind covinous 
was the original of uses, \z) though after it induced 
to the lawful intent general and permanent ; for (a) 50 

Edw. III. is the first statute (6) I find wherein mention j^o Ed. III. 
is made of the taking of profits by one, where the *' 
estate in law is in another. 

For as to the opinion in 27 Hen. VIII. that in case r»7^»VIII. 
of the Istatute of Marlebridge, the feoffors took the ' * , 
profits, (c) it is but a conceit : for the law is at this* 

* day, that if a man infeofT his eldest son, within age, « p. a^. 
and without consideration, although the^ profits be 
taken to the use of the son, yet it is a feofibient 
within the statute. And for the statute I)e religiosis 

7 Edwaifd I. which prohibits generally that religious f^ tA^^U. 
persons should not purchase arte vel ingenioj yet it*^' **i 
maketh no mention of an use, (d) but it saith colore 
donatianiSy fennmiy vel alicujus Ht^diy reciting there 
three forms of conveyances, the gift, the long lease, 
and feigned recovery ;' which gHt cannot be under- 
.stood of a gift to a stranger to their use, for that 
came to be holpen by 15 Richard II. long after. 15 Ric. n. c 5. 

But to proceed, in 50 Exiward III. a statute was 50 Ed. III. c. 4. 
made for the relief of creditors against such as made 

Cf) [See Note 42.] («) [See Note 43.] (a) [See Note 44.] 
(3) [See Note 45.] (0 [See Note 46.] (d) [See Note47.3 

jE covinoui 



26 READING UPON 

|;oftfaei]ice{»«- covincms gifts of tlkeir lands and goods, «ndc<M- 

gmtion Sf^tm v^ed didr bodies into sanctuaries, there Kriiig Ugh 

2^^^'^ upon other's goods ; and tberefiHne that statinte iiuifa 

•ionofwKfin tfadf bnds liable to their creditors ejeecutmis kk 

tttte^.] dmt particiuar. cka&, if tney took the prdfils. Iti 

[I Rich. 11, 1 fiidhard n. a statute («?)was made for rdkf of thosii 

^ '*'' as had right of action, ig^inst di6se a» had temoved 

the tenancy of the prtecipe from them sraietUBes hy 

infeoffing great persons, for maintenance ; and seme* 

times by secret fec^Stnents to others, whereof the 

demandants {/} could have no notice; litid therefore 

the statute maketh the tecovery good in all actidds 

against the first feoffors, so as the|y took the |»rofits, 

and so as the demandants *(/) bring their actions witb« 

[i Kich, n* Jim y^p ^ ^Y^\j^ expiilsions. In 2 Richard II. €ap. 3. 

3€ssidn 2. {g) an imperfedtlon of the statute <tf BO 

Edward IIL was holpen ; for whereas the statute took 

HO place, but where the defendant appeared, and so 

was frustrated, the statute grreth upon prockunation 

♦ Pk i6. * mide at the gate of the place privileged^ that the 

land shduKt be liable without appearance. 
[7Ktch»u« In 7 R. IL a statute was made for the restraint of 

•• i»*i Aliais, to take any benefices, <xs dignities ecclesiasti- 

cal, or farms, or administration to them, without 
the King's special licence, upon pain of the statute 
of provisors : which being remedied by a former 
statute where the alien took it to his own me ; it 
is by that statute remedied, where the dien took it 
to the use of another, as it is said in the book ; 
tbough I guess, that if the record were searched, 

(e) l^ee Note 4S.3 (/) The word demandants was very 
pfoperfy substituted for defendants in the last edition, and. the 
<50 £d. If I. for 5 £d. III. a iQ\y Uue» abo^e. (f ) [See 
*Kote49.3 

it 



^f^mmmmm^ 



wm 



THE STATUTE OF USES. 37 

it ahottki be, if aor other pmtliiSQd to the use of ^of tkcJiMSQ)^ 

, , - ttoa an4 {tro- 

an alisn, and that the w<MrcU, ^' or to the U89 (9 ao- gnsiioa («f vift» 
** odier," ahouU be ^ or any other to hfe wse.'" tfth^^SiS?' 
In 15 Rich. 11. cap. S. a statute was w«ie for the w^^n ofj«. u 
rdief of lords against pwrtmain, nrbere foonaients utcs.] 
were made to the use of corporations ; and an ordl- ^^^ 
nance made that for feofiments past the feoflfaes 
should, before a day, either purehaae license to 
^mortise them, or alien them to some other use, 
or other feoffinents to come, or they should be 
witUn the statute of mortmain. In 4 Hen. IV, r4H.4.«.7.] 
cap. 7. tbe statute of 1 Richard II. is enlarged in the 
limitation of time ; for whereas the statute did limit 
the action to be brought within the year of tbe feoff- 
ment, thb statute in case of a disseisin extends the 
time to the life of the disseisor ; and in all other ac- 
tions, leaves it to the year from the time of theac* 
tion grown. In 11 Hen. VI. cap. 3. that statute p'?*^'* 
of 4 Hen. IV. is declared, because the coneeit was 
upon the statute, that in tbe case of disseisin the 
haitation of the life of the disscssor went only to the 
anise of fuml disseisin^ and to no other action ; and 
therofore* that statute dedareth the former lai^to *P.s7« 
^extend to all other actions, grounded upon rwvtl 
disseisin. In 1 1 Hen. Vi. cap. 5. a statute was made [n H. VI. 
for relief of him in remainder against parlicukr ^* ^'^ 
tenants, for lives, or years, that assigned ovjer their 
estates, and took the profits, and then committed 
waste against them ; therefore this statute gtveth an 
action of waste, bebg pernors of tbe profite. la all 
this course of statutes qo jretief is giyen to purchasers, 
that come in by the party, but to such as come in 
by law, as demandants (A) in pracipes^ whether they 



\h) [See Note 50.] 
E2 



be 



2S READING UPON 

t^oftheittcep- bc creditors, disseisees, or lessors, except only in 

tion and pro- ^ - _ , , . n . 

grcfttion of uses, case of mortoiain : ahd note also, that they be all m 

ofthe pSogS^ cases of speciid covinous intents, (i)as to defeat cxe- 

^n of tt$« in cutions, tenancy to the pnedpe, and the statute of 

tutei.] mortmain <»• provisors. t^rom 1 1 Henry VI. to 1 R- III. 

being the space of fifty years, there is a silence of 

uses in the statute book, which was at that time, 

/ when, no question, they were favoured most. In 

[i Rich. in. 1 Rich. III. cap. 1. cometh the great statute (y) for 

***• *••! relief of those that cometh in by tlie party, and at 

that timc^ an use appeareth in his likenefs ; (A:) for 

there is not a word spoken of taking the profits, to 

describe an use by, but of claiming to an use ; and 

this statute ordained, that all gifts, feofttnents, 

grants, He. shall be good against the feoffors, donors 

and grantors, and all other persons claiming only to 

their use ; so as here the purchaser was fulJy relieved, 

and cestuy que use was obiter enabled to change bis 

feoffees ; (y) because there were no words in the 

statute, of feoffments, grants, i(c. upon good con- 

[xHen. vn« sideration ; but generally (/) in Henry Vll.'s time, 

*^' *'•' new statutes were made for further help and remedy 

to those that came in by act in law ; as 1 Henry VII. 
♦ P,2S. cap. 1. 9, fonnedon is given without* limitation of 

time against cesiuygue use ; and obiter y because they 
make him a tenant, they give him advantage of a 
[4 Hen. vn. tenant, as of age, and voucher : query 4 H. VII. 
cap. 17. the wardship is given to the lord of the heir 
of cestuy que usCy dying, and no will declared, is 
/ given to the lord, as if he had died seised in de- 
mesne, and action of waste given to the heir against 

• 

(/) [See Note 51 .] (j) [S?e $upra 24. Note 42.] (i) [Sep 
Note 52.] (/) [See Note 53.] 

the 



J 



THE STATUTE OF USES. gg 

the guardian, and damages, if the lord were Wrred (Of thelnctp. 
in fais writ of ward ; and relief is likewise given unto ^sbn ofwM, 
the lord, if the heir holding by knights service be JJ^j^^^^hc 
of foil age. In 19 Hen. VII. cap.. 15. there is relief p«>g««ion of 

. . , . If uses in eoune of 

given in three cases, first to . the creditors upon statutes.] 
matters of record, as upon recognisance, statute, 
or judgment, where the two former were not aided [19 Hca.vii. 
at all by any statute: and the last was aided by a^**^''^ ' 
statute of 50 (19) E. III. and 2 R. II. only in cases of 
sanctuary men. Secondly, to the lords in socage for 
their relief, and herriots . upon death, which was 
<Hnitted in the 4 Henry VII. and lastly to the lords 
of villeins, upon a purchase of their villeins in use. 
In 23 Henry VIII. cap. 10. a further remedy was [»3 Hen. vm, 
given in a case like unto the case of mortmain ; for ^' 
in the statute of 15 Richafd 11. remedy was given 
where the use came admanum nwrtuaniy which was 
when it came to some corporation : now when uses 
were limited to a thing, act, or work, and to a body, 
as to the reparation of a church, or an abbot, or to 
a guild, or fraternities as are only in reputation, but 
not incorporated, as to parishes : or such guilds or 
fraternities as are only in reputation, but not in- 
corporated, that case was omitted, which by this 
statute is remedied, not by way of giving entry unto 
the lord, but by way of making tlie use utterly void ; 
neither doth the statute express * to whose benefit the * P. 19. 
use shall be made void, either the feofibr,^ or feofiee, 
but leaveth it to law, (n) and addeth a proviso y that 
uses may be limited twenty years firom the gift, and 
no longer. 

This is tlie whole (o) course of statute law, before [Recapitulation 
this statute, touching uses. Thus have I set forth ^tsjf^^jjj, 

cussed.] 
(w) [See Note 54.] («) [See Note 55.] {0) [See Note be."\ 

unto 







SQ RIDING UPON 

[iteeatMa^ii ttBtD yM tfae luitiiie and definitioa of an um^ Ae 

i'^^t^^Httameei of an use and tnmt, and «be parte anl 

*^^'] qualides of it; aad by idiat rules and leanungt mm 

shall be gnided and ordered : by a precedent of them 

in our laws, Ae causes of tiie springing and spread* 

ing of uses, tfae coattinnance of ibemy and iim pro. 

ceedings that they have had both in comnwa hnr and 

statute law ; whei«by it may appear, that an use is no 

more but a genof^l trust wlien any one wiU trust the 

conscience of aaodielr l)etter than his own estate and 

possession, which is an aocident or event of hmnan 

•odety, which hath been, and will be in all bws^ 

and therrfore was at die common law, which is 

tHaiptiij^i common reason. Fitz-Herbert saith in the 14 H. VHt. 

i^H.yUh A* ^^^^^^ reason is common law, and not conscience ; 

, but ccMnmon reason doth d^ne that uses should be 

iremedied in conscience, and not in courts of law, 

and ordered by rules in consdence, and not by 

straight rules of law ; for the common law bath a 

Und of rule and sun^^ ov^ the chancery, to dft» 

termine what bdLongs to the chancery. And tfaeie^ 

foie we may truly conclude, that the force and 

strength that an use bad or hath in conscience, is by 

common law ; and the force that it had or bath by, 

common law, is only by statutes. 



DISCOURSE 



THE STATt 



♦ DISCOt 

NOW followcth m tin 
atioK of this statute, whi 
for Uioae former conndera 
wrve but for introdufi^idii 
This atirtate, as it is thf 
hath the greatest power : 
ritagcs of the ivalm, so 
tfaeiHiBuiv of tke time p 
io its^ is most .perfet^ 
penned of any kw -in the 
the most declaring asd 
coBBEtji^ and Btaading' 
ordinaticfls, mid qualified 
and cin»uB4>t)(4i sttviags 
*Ub the best poadeved in f 
it of aQy statute thu ! I 
the statute itself, I vrill m 
of circuQistanoe. 
l.Tbetiioeof the;auti 
2. The title of it. 
3> The precedrat or pq 
For the tame of itiva 
jEing was in full peaoe, an 
estate, in which nature of 
of their poflsessioos ; asv 
juoet stirring, as again, I 
he is fiill, is no less care 
children, aadof di^ostng 
*-than be was of his U 
thereof. 



S2 



READING UPON 
About that time the cealm likewise began to be 



[And herein* 
secondlyy :the 
title of the 
statute.] 



[Ofthecircum- 

ing the statute.] infraiichised from the tributes of Rome, and the 
possessions that had been in mortmain began to stir* 
abi'pad ; /or this year was the suppression of the 
smaller houses of religion, all tending to plenty, and 
purchasing : and this statute came in consort itith 
divers Excellent statutes, made for the kingdom in 
the same parhament ; as the reduction of Wales to 
a more civil government, the re-edifying of divers 
cities and towns, the suppressing of depopulation 
and inclosures. 

For the title, it bath one title in the roll, and ano-» 
ther in course of pleading. The title in the roll is 
no solemn title, but an actintided. An act expressing 
an order for uses and wills ; the title in course of 
pleading is, Statutum de usibus in possessionem 
transferendis : wherein Walmsly justice noted well 
40 Begtrue, that if a man look to the working of the 
statute, he would think that it should be turned the 
other way, de possessionibtis ad tisus transferendis; 
for that is the course of the statute, to bring pos- 
session to the use. But the title is framed not ac- 
cording to the work of* the statute, but according to 
the scope and intention of the statute, nam qtufd 
primum est intfintume^ vlHmum est in operations 
The intention of the statute by carrying the posses- 
sion to the use, is^to turn the use to a possession ; 
for the words are not de possessionibtis ad usus trans^ 
ferendis ; and as the grammarian saith, pnepositia^ 
ad deriotatnotam actioniSf sed pneposiiio, in, cum 
accusativo denotat notam alterationis : and therefore 
"^Kingsmill justice in the same case saith, 4hat£he 
meaning of the statute was, to make a transubstan- 
tiation of the use into a possession. But it is to be 

4 noted 



* P.3*. 



THE STATUTE OF USES. 53 

noted, that titles of acts of parliament sevefJaJly caftie [Of Ac cirrom*.' 

' ^ . '' ttaAoesatCendiiif 

in but in the 5 Hen. VIII. for before that time there the itatote.] 
was but one title of all the acts made in one parlia«- 
ment ; and that was no title^ neither, but a general 
preface of the good intent of the King, tho^ now it 
is parcel of the record. 

For the precedent of this statute upon which it is Aad htt&A^ 
drawn, I do find by 1 Richard III. whereupon you cedent ujMa 
may see the very mould whereon this statute was jnwa*' 
made, that the said Ipng having been iiifeofFed^ 
before he usurped, to uses, it was ordained that the 
land whereof he was jointly infeofFed should be as if 
he had not been named ; and where he was soldy 
ittfeoffed, it should be in cestuy que use^ in estate, as 
he had the use. 

Now to come to the statute itself, the statute con» ['nic*wftitell* 

self €0Aiidere4« 1 

sisteth, as other laws do, upon a preamble, the body 
of the law, and certain savings, and provisoes. The 
preamble setteth forth the inconveniences, the body 
of the law giveth the remedy, and the savings and 
provisoes take away the inconveniences of the 
remedy. For new laws are like the apothecaries} 
drugs, though they remedy the disease, yet they 
trouble the body ; and therefore they use to correct 
them (p) with spices : so it is not possible to find a 
remedy for any mischief in the commonwealth, but 
it will beget some new mischief^ and therefore they 
spice their laws with provisoes to correct and qualify 
them. 

* The preamble of the law was justly commended * P. j j. 
byPopham chief justice in 36 Regime, where heJfjjigSSuteJ 
saith, that there is little need to search and collect r^*?*^*?*^** 

( A) th€mr-ikX%i added in the last editioni 

F out 



3^ READING UPON 

(TkeprnmbU Out of cases, before this st^ute, what tte miichief 
was which the scope of the statute was to redress ; 
because there is a shorter way offered us, by the suf- 
ficiency and fulness of the preamble, and tberdbre it 
is good to consider it and ponder it dtorou^ily. 
f^t pMtt of The preamble hath three parts. 

pium t.j jpjjgt^ (J rgcital of the principal inconvenieoces, 
which is the root of all the rest. 

Secondly, an emuneration of divers particular in- 
conveniences, as branches of the former. 

Thirdly, a taste or brief note of the remedy that 
the statute meaneth to apply. 
t.Thepriociptl The principal inconvenience, which is radix om- 
tmcio^iia dit '"«'» malorum, is the diverting from the grounds 
I*™"'*'*' and principles of the common law, by inventing a 
mean to transfer lands and inheritatices without any 
solemnity or act notorious : so as the whole statute 
is to be expounded strongly towards the extinguish- 
ment of all conveyances, whereby the freehold or 
inheritance may pass without spy new confectioi^ of 
deeds, execations of estate or entries, except it be 
where the estate is erf privity and dependence one 
towards the other ; in which cases, mutatis mutandUf 
they nught pass by the rules of the coaunon law. . 
i.TbepanicuUr The particulu incony^uences by the law x^ 
awSo^bthe b«a''Bed may be reduced into foiur heads, 
pieutibit. I first, that these conveyances in use are weak 

for ccnuideration. 
• P. 34, * 2. Secondly, that they are obscure and doubtful 

for trial. 

3. Thirdly, that th^ are dangerous for want of 
notice and publication. 

4. Fourthly, that they are exempted fi-om all such 
titles as the law subjecteth possessions unto. 

The 



THE STATUTE OF USES. 

*Tht first iuconvenience Hghteth upon heii 

The second upon jurors and witnesses. 

The third upon purchasers. 

The fourth upon such as come in by gift i 

AH which are persons tbat the law doth pri 
respect ahd favour. 

For the first of them, there. (y) are three 
raents, lo the judgment of man, in disposir 
and advisedly of his estate. 

First, trouble of mind. 

Secondly, want of time. 

Thirdly, of wise and faithful counsel aboi 

1. And all these three the statute did find 
the disposition of an use hy will, whereof i 
the utijust disinherison of heirs. Now the f 
law unto heirs appcareth in many parts of 1 
as the law of descent privilegeth the possessit 
beir against the entry of him that hath rigli 
law : no man shall warrant agiunst his heir. 
he warrant against himself, and divers oth 
too long to stand upon : and we see the anc 
in Glanvill's time was, that the ancestor ci 
disinherit his heir by grant, or other act € 
in time of sickness ; neither could he ali 
which had descended unto him, except it ' 
•consideration of money or service ; but m 
vance any younger brother without the cc 
the heir. 

2. For triitls, no law ever took a straite 
that evidence should not he perplexed, ii< 
inveigled, than the common law of Englam 
the other side, never law took a more pre 

(f) [See Note ST.] 
F3 ■ 



L 



56 READING UPON 

[As to the strait coarse with juries^ that they should give a 
particuhAncon- direct verdict. For whereas in a manner all law* 
««^":C^^^^^^ give the triers, or jurors, which in other laws 
^d^doobtfui for are called judges de faciOj a liberty to give rum' 
liquet f that is, to give no verdict at all, and so the 
case to stand abated ; our law ihforceth them to a 
direct verdict, general or special ; Jind whereas other 
laws accept of plurality of voices to make a verdict, 
our law inforceth. them all to agree in one ; and 
whereas other laws leave them to their own time 
and ease, and to part, and to meet again ; our law 
doth duress and imprison them in the hardest man- 
ner, without light or comfort, until they be agreed, 
in- consideration of straitness and coercion; it is 
consonant, that law do require in all matters brought 
to issue, that there be full proof and evidence ; and 
therefore if the matter in itself be of that surety as in 
simple contracts, which are made by parole without 
writing, it alloweth wager of law (r). 

In issue upon the mere right, which is a thing 
hardly to discern, it alloweth wager of battail to 
spare jurors, if time have wore out the marks and 
badges of truth : from time to time there have been 
statutes of limitation, where you shall find this mis- 
chief of perjuries often recited ; and lastly, which is 
the matter in hand, a]l inheritances could not pass 
• P»36. * but by acts overt and notorious, as by deeds, 

livery, and records. 
[As to the third 3. For purchasers, bona fide, it may appear that 
inconveniences, they were ever favoured in our law, as first by the 
"^ll^f^ great favour of warranties which were ever for the 
wint of notice,] help of purchasers : as where by the law in Edw. III.'* 

(r) [See Note 58.] 

time, 



-■^iT'd' 



THE STATUTE OF USES. 37 

lime, die disseisee could not enter upon the feoffee [As tothethiid 
m regard of the warranty: so again the coUateraJticuUrincon- 
garranty, which other^vise is (5) a hard law, grew in l^^i^^ 
doubt only upon favour of purchasers ; so was the^'/"^'^*"^®^ 
binding of fines at the common law, the invention 
and practice of recoveries, to defeat the statute of in« 
tails, and many more grounds and learnings are to 
be found, which respect to the quiet of the posses- 
sion of purchasers. And therefore though the statute 
of 1 Itich. III. (t) had provided for the purchaser in 
some sort, by enabling the acts and conveyances of 
cestuj/ qute use ; yet nevertjieless, the statute difi not 
at all disable the acts or charges of the feoiSees : and 
so as Walmsly justice said 42 Megirue, they played 
at double hand, for cestuj/ que use might sell, and the 
feoffee might sell, which was a very great uncertainty 
to the purchaser. 
4. For the fourth inconvenience towards those [Ai to the 

^1 ^ . , I ,., fourth head of 

that c(Hne m by law ; conveyances m uses were likepvticuiar incon* 

privileged places or liberties: for as there the law ^^*^^^^;;^ 

doth not run, so upon such conveyances the law?*p°™«*A*i< 

could take no hold, but they were exempted from all 

titles in law. No man is so absolute owner of his 

possessions, but that the wisdom of the law doth re« 

serve certain titles unto others ; and such persons 

come not in by the pleasure and disposition of the 

party, but by the justice and consideration of law, 

* and therefore of all others they are most favoured : * ^- 37» 

and also they are principally three. 

1. The king and lords who lost the benefit of at- 
tainders, fines for alienations, escheats, aids^ her- 
riots, reliefs, &c. 

(i) [See Note 59,'} (/) [See supra page 27, and Note 42.] 

2. The 



aa READING UPON 

fAstoihc 2. The demandants (u) in pracipes either real ot 

particular incon- personal, foT debt and damages, who lost the'benefit 
^!!1?*!^™^* of their recoveries and executions. 

uses are exempt- 

cd from aU tiUet 3. Tenants in dower, and by the courtesy, who 

in law*! 

lost their estates and titles (x^). 

1. First for the King: no law doth endow the 
King or sovereign with more prerogatives or privi- 
leges : for his person is privileged from saits and ac* 
tions, his possessions from interruption and disttir«» 
bance, his right from limitation of time, his patents 
and gifts from all deceits and false suggestions. Next 
the King is the lord, whose duties and rights the law 
doth much favour, because the law supposeth the 
land did originally come from him ; for until the 
statute of Zuia emptores terrarum, the lord was not 
forced to destruct or dismember his signiory or ser** 
vice. So until 15 H. VII. the law was taken, that 
the lord, upon his title of wardship, should put out a 
conuzee of a statute, or a termor ; so again we see, 
that the statute of mortmain was made to preserve 
the lord's escheats and wards : the tenant in dower 
is so much favoured, ks that it is the common by«- 
word (w) in the law, that the law favouretb three 
things. 

1. Life. 

2. Liberty. 

3. Do wen 

♦ p. SS, * So in case of voucher, the feme shall not be de- 

layed, but shall recover against the heir incontinent ; 
so likewise of tenant by courtesy it is called tenancy 

(a) [See Note 60.] (a/) [See Note 61.] (w) Bywrc^iM 
in the last edition put between brackets, at if it had been 
there first added, but that word is in the edition of 1641, and 
in the tracts also, published in 1737. 

* by 



THE STATUTE OF USESi 39 

, by the hw of England, and therefore specially fa- TAstoa^ 
voured, as a proper conceit and invention of our particoiariacoa^ 
law ; so as a&^ain the law doth favour such as have ^«n*«oces,-,4iwi 

' ® uses are exempt- 

ancient rights, and therefore it telleth us it is com- ^ from all titlf» 

monly said that a right cannot die^ : and that ground 

of laW| that a freehold cannot be in suspense, shew- 

eth it well, insomuch that the law will rather give 

the land to the first comer, which we. call an occu** 

pant, than want a tenant to a demandant's action. 

And again the other ancient ground of law r^miU 
/^r, sheweth that where* the tenant faileth without 
folly in the defendant, the law executeth the ancient 
right. To conclude therefore this point, when this 
practice of feoffments to use did prejudice and dam- 
nify all those persons that the ancient common law 
favoured ; and did absolutely cross the wisdon^ of the 
law, to have conveyances considerate and not odi- 
ous, and to have trial thereupon clear and not in* 
veigled, it is no marvel that the statute concludeth, 
that their subtle imaginations and abuses tended to , 
the utter subversion of the ancient common laws of 

this realm. 
The third part of the preamble giveth a touch of [The third part 

the remedy which the statute intendeth to minister, which ^^h^ 

consbting in two paru. ^S."^' 

First, the extirpation {r) of feoffments tidered.] 

Secondly, the taking away of the hurt, damage, 

and deceit of the uses ; put of which have been 

gathered two extremities' of opinions. 
* The first opinion is, that the intention of the * P* 39*. . 

statute was to discontinue and banish all conveyances to the intcntioa 

oftbettatut« 

(*) The word taetirjfo^on wai in the last edition first tub- '^* *' 
•titttted for atjurgtm. 

in 



40 READING UPON 

[One opinion as in use; (v) grounding themselves upon the words, 

to the intention - , -, i/..t .• -i 

of Che statute that the Statute doth not speak of the extinguishment 
^•ppowd.] ^^ extirpation of the use, namely, by an unity of pos- 
session, bat of an extinguishment or extirpation of 
the feoffment, &c. which is the conveyance itself. 

Secondly, out of the words, abuse and errors, 
heretofore used and accustomed, as if uses had not 
been at the common law, but had been only an er- 
roneous device or praetice» To both which I an- 
tswer. 

To the former, that the extirpation which the 
statute meant was plain, to be of the feoflee's estate, 
* and not to the form of conveyances. 

To the latter I say, that for the word, abuse, that 
may be an abuse of the law, which is not against 
law, as the taking long leases at this day of land in 
capite to defraud wardships, is an abuse of the kw, 
which is not against law, but wandering or going 
astray, or digressing from the ancient practice of the 
law; and' by the word, errors, the statute meant by 
it, not a -mistaking of the law, into a by-course ; 
as when we say, erravimus cum patrihus juris ^ it is 
not meant of ignorance only, but of perversity. 
B)it to prove that the statute meant not to suppress 
the form of conveyances, there be three reasons 
which are^nOt answerable {%). 

The first is, that the statute in the very branch 
tliereof hath words defuturo^ * that are seised, or here- 
after shall be seised :' and whereas it may be said that 
these words, were put in, in regard of uses suspended 
by disseisins, and so no present seisin to the use, 
» P.' 40. ^^^il * a regress of the feoffees; that intendment is very 

C) [See Note 620 («) [See Note 63.] 

particular 



THE STATUTE OF USES. 41 

particular, for commonly such cases are brought in [One opinion as 

V. , , , , . . J to the intention 

provisoes, or special branches, and not intermixed of the statute 

in the body of a statute ; and it had been easy for **PP®^*<^'J 
the statute to have said, *^ or Tiereafter shall be seised 
** upon any feoflfoient, Kc. heretofore had or made." 

't'he second reason is upon the words of the statute 
of inrolm6nt, which saith, that np hereditaments 
shall pass, 8(c. or any use thereof, Kc. whereby it 
is manifest, that the statute meant to leave the form 
of conveyance with the addition of a farther cere- 
mony. 

The third reason I make is out of the words of 
the proviso, where it is said, that no primer seisin, 
livery, no fine for alienation, shall be taken for any 
estate executed by force of the statute of 27, (a) be- ayH. VlUrf 
fore the first of May 1536, but they shall be paid for 
uses made and executed in possession for the time 
after ; where the word, made, directly goeth to con- 
veyances in use made after the statute, and can have 
no other understanding ; for the words, executed in 
possession , would have served for the case of regress : 
and lastly, which is more than all, if they had had any 
such intent, the case being so general and so plain, 
they would have had words express, that every limi- 
tation of use made after the statute should have heed 
void ; and this was the exposition, as tradition goeth, 
that a reader of Gray's- liin, which read soon after 
the istatute, was in trouble for, and worthily, who, as 
I suppose, was a Boy, whose reading I could never 
sto ; but I do now insist upon it, because now again 
some, in an immoderate invective against uses, do 
relapse to the same opinion. 

? (tf) [See Notfe 64.] 

G *The 



V 



^ &EADING UPON 

* P. 41. ♦ The second opinion, which I caUed a contrary 

opinion as to the extremity, IS, that the statute meant only to remedy 

iSSSp'o^^O ^^ inischiefs in the preamble, recited as they greir 

by reason of divided us^ ; and although the like 

mischief may grow upon the contii^ent uses, y^ 

the statute had no foresight of them at that time, and 

so it was merjely a new case not comprised. Whese- 

' linto I answer, that it i$ the work of the statute to 

execute the divided use ; and therefore to make an 

use void by this statute which was good befoee^ 

though it. doth participate of the mischief recited io 

the statute, were to make a law upon a preamble 

Without a purview, which were grossly absmrd. But 

upon the question what uses are executed, and what 

not ; and whether out of possessions of a disseisor^ 

or other possessions out of privity or not, ther^ you 

shall guide your exposition according to the pream^ 

« ble ; as shall be handled in my next day's discourse^ 

and so much touching the preamble of this law. 

Kbc body of For the body of the law, I would wish all readers 
statute . r 

•spowM.] that expound statutes to do as schdars are wiUeq to 
do : that is, first to seek out the principal ySH> ; that 
is, to note ai^d single out the material words where^ 
upon the statute is framed ; for there are in every 
statute certain words, which are as veins where the 
life and blood of the statute cometh, and where all 
doubts do arise, and the rest are liters Tnortiue^ ful- 
filling words. . 

The body of the statute consisteth upon two 
parts. 

First, a supposition or case put, as Andevson 
36 Begina, calleth it. • 

Secondly, a purview or ordinance thereupon. 

* The 



THE STATUTE Of USES." 4J 

♦ The casesr of the statute are thlree* and every one* f • 4*- ^ , 

, ^Thecatet of the 

haA his purview. The general case. The case of tutvte. 
co«feofFees to the use of some of them. And the 
general ease of feofiees to the use or intent {b) of 
rents or profits. 

The general case is i)uilt upon eight material »• The genet^ 
words. Four on the part of the feoffees. Three 
on the part of cestuy que use. And one common to 
them both. 

The fii:st'inaterial word on the part of the feofFe^ [The materia] 
is the word, person. This excludes (^r) all alien nees; genenUcaMcoii- 
{d) for there can be no trust reposed but in a person "^"**'^ 
eertain : it excludes again all corporations ; for they 
are created {e) to an use certain : for note on the part 
of the f^oiifee eVer (/) the statute insists upon tlie 
word person, and on the part of cestuy que use, that 
added body poHtic. ^ 

The second word material, is the word, seised : 
this excludes chattels. The reason is, that the sta* 
tute meant to remit the common law, and not but 
^that th e cha ttels might ever pass by testament or by 
parole ; therdr<»e the use did not pbrvert {g) them* 
It excludes rights, (h) for it is against the rules of the 
common law to grant or transfer rights; and there* 
fore the statute would not (t ) execute them. Third- 
ly, it excludes contingent (k) uses, because the seisin 
cannot be but to a fee-simple of an use ; and when 
that is limited, the seisin of the feofEee is spent ; for 

(b) CSee Note 6^.] (a) [Batsec mfra 59 and Note 1 19.] 
{if) The words oUiH nies were upi the k«t edition properly 
inserted in the place of alliances^ both here and in the next 
page, {e) [See Note G6.'\ (/) [See Note 67.] (jg) [See 
Note 68.1 ^ (>*) [See Note 69.] (/) [See Note 70.] (i) [See 
Note71.] 

G 2 Littleton 



44 READING UPON 

[The material Littleton tells US, that there are . but two seisins^ 
%entt^UK6 ^^^ ^^ damimo ut de feodoj the other ut de feodo ii 
eonsidcrcd.] Jure; and the feoffee by the common law coul4 
e^tecute but the fee-simple to uses present, and not 
post uses; and therefore the statute meant not to 
execute them. 
♦ p. 43* * The third material word is, hereafter : that bring* 

eth in again conveyances made after the statute ; it 
brings in again conveyances made before, and dis- 
turbed by disseisin, and recontinued after ; for it is 
not said, infeoffed to an use hereafter raised (/). 

The fourth word is, hereditament y which is not 
solely [m) to be understood of those things whereof an 
inheritance is in esse : for if I grant a rent charge de 
novo for life to an use, this is good enough ; yet there 
is no inheritance in being of this rent : this word like- 
wise excludes annuities and uses themselves ; so that 
an use cannot be to an use (n). 

The first words on the part of cestuy que vse^ are the 
words, use^ confidence^ or trusty whereby it is plain 
that the statute meant to remedy the matter j and 
not words: (o) and in all the clauses it ^till carrietb 
the words. 

The second word is the word, person^ again, 
which excludeth all alien vies; it excludcth also all 
contingent uses and uses (p) which are not to bodies 
lively and natural, as the building of a church, the 
making of a bridge ; but here, as noted before, it is 
ever coupled with body politic. 

The third word is the word, other; for the statute 
meant not to cross the common law. Now at this 

(/) [See Note 72.] X^) [Sec Note 73.] (») [See Note 74.] 
(0 [See Note 75.] (/) [See Note 76.] 

time 



■J 



THE STATUTE OF USES. . 45 

time uses were grown to such a familiarity^ as men [The material 

1 1 . ., . 1 /. . 1. . • jy words in the 

could not thmk pt possession, but m co^urse 01 use ; |c„«rai case 
and so every man was seised to bis own use, (y ) as well w^^i^^erwi] 
as to the use of others ; therefore because statutes 
would not stir nor turmoil possessions settled at the 
common law, it putteth in precisely this word^ 
other; meaning the divided -use, and not the con- 
joined use; and this causeth tbe clause of joint 
* feoffees to follow in a branch by itself; for else that * P. 44. 
case had been doubtful (r) upon this word, other. 

The words that are common to both, (s) are words 
expressing the conveyance whereby the use ariseth, 
of which words, those that breed any question are, 
agreement^ willy otherwise, whereby some have in- 
ferred that uses might be raised by agreement parole, 
so there were a consideration liot {t) of money or other 
matter valuable, for it is expressed in the words 
before, bargain, sale, and contract, but of blood, 
or kindred ; the error of which collection appeareth 
in the word immediately following, namely, will^ 
whereby they might as well include, that a man 
seised of land might raise an use by will, especially 
to any of his sons; or kindred, where there is a'reat 
consideration ; and by that reason, mean, betwixt 
this statute and the statute of 32 Hen. VIII. c. 1. of 
wills, lands were deviseable, especially to any man^s 
kindred, which was clearly otherwise ; and therefore 
those words were put in, not in regard of uses raised 
by those conveyances, but that uses already raised 
by .those conveyances, {u) or without, or Ukewise 

iq) [See iniri 62 y Note 134.] (r) [See infra 49.] (/) [Set 
Note 77.] (0 [See Note 78.]' («) [See Note 79.] 

by 



46 READING XJPOit 

[The materiti hj wtH, might be transferred ; (i^) aitd there was a ' 
fMcili CMC coa- person seised to an use, by fiwrce of that agreement 
lidacd.] or ipyiij^ namdy, to the use of. the assignee (n^y^ 

And for the word, othenvise^ it should by the 
geuerddity of the word include a disseisin, to an use ; 
but the whole scope of the statute crossetfa tbat^ 
which was, to execute such uses as were cofi6dences 
and trust, which could not be in case of dissebin ; 
for if there were a commandant precedent, then the 
\ land was rested in cestuy que use upon the entry ; 

and if the disseisin were of the disseisor's own bead^ 
then no trust. J^nd thus much for tlie <;ase of rap«- 
position of this statute ; here follow the ordinance 
and purview thereupon. ^ 
• p. 45, * The purview hath two parts, the first 6peraii(^ 

o^orfmanir ^^«^«^^^ the effect that the statute worketh ; and there 
upon the geserai jg modus operandi y a fiction, or explanation how the 
[i. lis effect.] Statute doth work that effect. The efiect is, that 
of wOTto^]'' f ^^/ay que use shall be in possession of like estate an 
he bath in the YNse; the fiction quomedo is, that the 
statute will have the possession c£cestutf que use^ as a 
new body compounded of matter and form^ and 
that the feoffees shaU give matter and substance, 
and the use shall give form and quality. The mate- 
rial words in the fh^ part of the purview are four. 
[The material The first words are, remainder and reverter ^ the 
part of the Statute havmg spoken before of uses m fee-snnpley 
SdoSTl^"' in tail, for life, or years, addeth; or any use (x) in 
"remainder or reverter: whereby it is manifest, that 
the first words are to be understood of uses in pos- 
session. For there are two substantial and essential 
differences of estates, the one limiting the times, 

. (v) [See Note 80.] (w) [See Note 81.] (*) [See Note 82.] 

4 for 



THE STATUTE OF USES. 47 

fbr ift estates are but times of their continuances ; I7f» nattntX 
this maketh the difiarence of fee-simplei fee^taiI|fincpaftof tii» 



for life or years : (y) juid the other maketh difference SJJrST/ 
of p ossess i on as remaind^ : all other diffeneooes (tf 
estate are but accidents, as sh$ill be said hereafter ; 
these two the statute meant to take hold of, and at 
the words, remainder and reverter, it stops : it adds 
not words, right, title or possibility, nor it hath not 
general words, or otherwise : it is most plain, that 
the statute meant to execute no inferiinr uses to re« 
inainder or rerertar ; (x) that is to say, no possibility 
or eontiogencie^ but estates, only such as the feoflfees 
imigbt have ^xecut^ by conveyance made. Note 
also, that the very letter of th^ statute doth talcft 
notice of a diffi»rence between an use in renudnder 
and an use in reverter ; which though it cannot be 
^ properly so called , beeause it doth not depend upon * p. 46, 
particular estates, as remainders do, neither did then 
before the statute cbraw any tenures as reversions 
do ; yet the statute intends that there is a dsSerence 
when the paarticular use, and the use limited upon the 
particular use, are both new uses ; in which case it 
is an use in^ remainder ; and where the particular use 
is a new use, and the remnant of the use is the old 
use, in Irhich case it is an use in reverter. 

The next material wotd is, from henceforti^ 
which doth exclude all conceit of relation that cestuy 
que vse shall not come in as from the time of the 
first feoffinents to use, as Bmdnell^s conceit (a) was 
in 14 Hen. VIII. ; that is, the feofiee {b) had granted [14 Hen. yiii« 
a rent charge, and cestuy que use had made a feoffw^ '^'J 

{fi [See Note 83.] («) [Sec lupra 42. Notes 69, 71.] 
{a) [Sse Nom 84. j {h) [See Note 85»] 

ment 



•idered.] 



48 READING UPONt 

[The material ment in fee, by the statute of 1 Richard itT. 

SfitJiSofthe feofiee (c) should have held it discharged, bec&use 

purview con- ^^ ^^^ ^f c^j/Mj^ que use shall put the feoffee itf, as 

if cestuy que use had been seised in from the time of 
the first use limited ; and therefore the statute doth 
take away all such ambiguities, and expresseth that 
cestuyque use shall be in possession from henceforth ; 
that is, from the time of the parliament for uses then 
in being, and from the time of the execution for uses 
limited after the parliament. , 

The third material words are, lawful setstrij estate, 

and possession, not a possession in law only, but a 

seisin in fact; (d) not a title to enter into the land^ 

but an actual estate. 

The fourth words are, of and in such estates as 

■ 

thei/ had in the use that is to say, like estates, fee- 
simple, fee-tail, for life, for years, at will, in pos« 
session, and reversion, which are the substantial dif- 
ferences ^ of estates,, as was said before ; but both 
these latter clauses are more fully perfected and ex- 
pounded by the braach of the fiction of the statute 
which follows. 

This branch of fiction bath three material words 
or clauses : the first material clause is, that the estate, 

SteciT^ ***"' ^^S^^9 ^^^^9 ^^'^ possession that was in such person^ 

Xc. shall be in cestui/ qv£ use ; so (e) that the matter 
and substance of the estate of cestut/ que use is the 
estate of ^ the feoflee, and more he cannot have ; so asr 
if the use were limited to cestuy qv£ use and his heirs, 
and the estate out of which it w$5 limued was but 
an estate for life, cestuy que me can have no inheri- 
tance : so if when the statute - the heir of the 



* P* 47' 



[The material 
words in the 
second part of 



(0 [See Note 86.] (a) [See Note 87.] (0 [Sec Note 88.] 

feoffee 



THE STATUTE OF USES. 49 

feofiee had not entered after the death of his ancestor, [The matcml 
but had only a possession in Jaw, cestuy.que tise m that second part of 
case should not bring an assize before entry, because J^J|^*^*®"* 
the heir of the feoffee could not ; so that the matter 
whereupon the use must work is the feofiee's estate. 
But note here; whereas before when the statute 
speaks of the uses, it spake only of uses in possession, 
remainder and reverter, but not in title or right; 
now when the statute speafcs what shall be taken 
from the feofiee, it speaks of title and right : so that 
the statute takes more from the feoffee than it 'exe- 
cutes presently, (/) in case where there are uses in * ' 
contingence vHikh are but titles. 

The second word is, clearly, wjiich seems pro« ' 
perly and directly to meet with the conceit of 
scintiUaJuris, {g) m well as the words in the. pream- 
ble of extirpating and extinguishing such feoffments, 
so that (A) their estate is (A) clearly extinct; 
. The third material clause is, after such quality^ 
^ manner^ form^ and condition as they had in the use ; * **• 4^* 
so as now as the feoffee^s estate gives matter, so the 
use gives form : and as in the first clause the use was 
endowed with tha possession in points of estate, so 
here (1) it is endowed with die possession in all acci- 
dents and circumstances of estate. Wherein first 
note, that it is gross and absurd to expound the form 
of the use any whit to destroy the substance of the 
estate ; as to m^e a doubt, because the use gave no 
dower or tenancy by the courtesy, that therefore the 
possession when it is transferred would do so like- 

(/) [See Note»89.] (^) [See Note 90.] {A) Theword* 

/to and ./V were first added in the last editioi^ (0 [See 

Note 91.] 

H wise: 



AO REAbtNO UPON 

[TttsmttcrUi #ise : nO) but the statute meant such quality , man-^ 
•econd j»rt**of ucr, form and condition, as is not repugnant to the' 
^J^^J"'*^*'""' corporal pi^sence and possession of the cfstate. 

Next for the word, condition^ I do not hold it to 
be put in^for uses upon condition, though it be ako 
comprised withiii the general words ; but because I 
would have things stood upon learnedly, and ac« 
cording, to the true sense, I hold it but for an ex-« 
plaining^ or woM of the effect ; as it is in the sta« 
%% Hea* VIU. tute of 26 of treasons, where it is said, that the of<* 
'^* faidets shall be attainted of the overt fact by men of 

their condition, in this place, that is to say. Of thett' 
degree or sort : and so the word condition in this 
place b no morCj^ but in like quality, manner, form 
and degree, or sort ; so as all these words amount 
but to Tnodo 6( forma. Hence therefore all circum-< 
stances of estate are comprehended as sole seisin, or' 
jointly seisin, by inti^rties, or by moieties, a circum* 
stance of estate to have age as coming in by descent, 
or not age as piurcliaser ; or circumstance of estate 
descendable to the heir of the part of the fiither, or 
of the part of the motlier ; a circumstance of estatcf 
conditional or absolute, remitted or not remitted, 
*#*49# ^ with a condition of inter-marriage or without: 

all these are accidents and circumstances of eistate^ 
in all which the possession shall ensue the nature and 
quality of the use : and thus much of the first case, 
which is the general case. 
[The second case The second cssm of the joint feoffises heeds no 
lit. of co-^ ^' exposition 9 for it pursueth the penning of the genc^ 

uw*!rf*sSi^or ^ ^^® • ^^^y *^^ ^ ^^ ^^^®> *^^ although it had 
oneofthem con- been omitted, yet the law upon the first case would 

8idcfed«J -K 1 1 

have been taken as the second (Jc) case provided ' sa 
that jit is rather aii explanation than an additioia ; fot 

/ 

<i) pee Note 92.] 

turn 



"wr^r-»"^^w 



I 



THE STATUTE OF USES.* Si 

tum that case the other wayi that one wera infeolFed [The seconact^ 
to the use of hiipself and another, (/} I hold the law viz. of co- ' 
to be, that in the former case (m) they shall be seised ut^^^Jom^or 
jointly^ and j$o in the latter case (;») cestuy qji^ M^^oneofthcmcoq- 
jslm}! be seped solely : for the wor4, other, it shall be. 
qualified by th^ construction of cases, as shall fippea^ 
when I come to iny divii^ion. But because this case 
of co-.feoSees to the use of one of th^m ivas a gener^ 
c^se in the realm, they foresaw it, and expressed it 
precisely, and passed over the case } conv^rsoj which 
was byt an especial case : and they were loth to bring 
in this case, (n) by inserting the word, ohlj/, into ' 
the first case, to have penned it to the use only of 
other persons : for they had experience what doubt* 
the word, only, bred uppn the statute of 1 R. Ill, 
(o) After this second case and before the third case 
of rents conies in the second saving ; and the reason 
of it is worth the noting, why the savings are in^ 
terlaced before the third case \ the reason of it is, 
because the. third case needeth no saving, and the 
first two cases did need savings ; find that is the 
reason of that again, 

^ It is 4 general ground, that ^here an act of par- ^ P* 50. 
liament is donpr, if it bp penned with an ac si, i^ needs l^c^ha^^^ 
{p\ not a saving, fpr it is a special gift, and not ainscrted before 
gpneral gift, which includes ^ rights ; and tberefo|ie 
|n 11 Henry VII, where upon the alienatipn pf I'^j*'"* ^•^• 
women, the statute intitles the heir of him in re- 
mainder to enter, you find never a #aving ($'} because 
the statute gives entry not szmplicif^r^ but within an 
fc si; as if no alienation had been inade, or if the 

(0 [See Note 93.] («) [Spe Note 94.] («) [See Note95q 
(0 [S?je Note 96.] Q) [See Not^ 97.] (f ) [See Not^ 98.] 

H 2 feme 



5S READING UPON 

pieasoM why feme had been naturally dead (r). Strangers that 
insertldVfw had right might have entred, and, therefore no sav- 
f3lH«.viii. ^"g "^«^- So in the statute of 32 Hen. VIII. (o) 
c«j>. 28.] of leases, the statute enacts, that the leases shall be 
good, and effectual in law, as if the lessor had been 
seised of a good and perfect estate in fee-simple; 
and therefore you find no saving in the statute ; and 
so likewise of diverse other statutes, where the sta-^ 
tute dotl^ make a gift or title good specially against 
certain persons, there needs no saving, except it be 
to esLempt some of those persons, as in the statute of 
1 R. III. {s). Now to apply this to the case of rents, 
which is penned with an ac si^ namely, as if a suf- 
ficient grant or lawful conveyance had been made, 
or executed by such as were seised ; why if such a 
grant of a rent had been made, one that had an 
ancient right might have entered and have avoided 
the charge ; and therefore no saving needeth ; but 
the first and second (.r) cases are not penned with an 
ac si, but absolute, that cestuy que use shall be ad« 
judged in estate and possession, which is a judgment 
of parliament stronger than any fine, to bind all 
rights; nay, the first clause hath farther words, 
namely, in lawful estate and possession, which 
maketh it stronger than any in the second clause. 
(/) For if the words only had stood upon the second 
* P* S«* clause, namely, ♦ that the estate of the feoffee should 

be in cestuy que me, then perhaps the gift should 
hav^ been special, and so the saving superfluous : 
and this note is material in regard of the great ques~ 

(r) [See Note 99.] {p) The words Hen. nil. first added in 
the last edition, (s) [Sec Note 100.] (*) The words first 
and second vrtte in the last edition substituted for second first. 

(0 [See Note 101.] 

tion. 



THE STATUTE OF USES. 53 

tion, whether the feofiees may make any regress ; (u) 
which opinion, I mean, that no regress is left unto 
them, is principally to be argued out of the saving ; [The savings of 

,,, ^ j,j>,, ^ . Uie.sUtute con- 

as snail be now declared : for the savings are two m ndoed.] 

number : the first saveth a]l strangers rights, with an 
exception of the feoffees ; the second is a saving out 
of the exception of the first saving, namely, of the 
feoffees in case where they claim to their own proper 
use : it had been easy in the first saving out of the 
statute, other than such persons as are seised^ or 
hereafter should be seised to any use, to have added 
to these words, executed by this statute ; or in the 
second saving to have added unto the words, claim* 
ing to their proper use, these words, or to the use 
of any other, not (v). executed by this statute : but 
the regress of the feoffee is shut out between the two 
savings ; for it is the right of a person claiming to 
^n use, and not unto his own proper use ; but it is 
to be added, that the first saving is not to be under- 
stood as the letter impUeth, that feoffees to us^ shall 
be barred of their regress, in case that it be of ano- 
ther feoffment than that whereupon the statute hath 
wrought, but upon the same feoffment ; as if the 
feoffee's to an use {iv) before the statute had been 
disseised, and the disseisor (x) had made a feoffment 
in fee to I. D. his use, and then the statute came : 
this executeth the use of the second feoffment ; but 
the first feoffees may make a i;egress, and they yet 
claim to an use, but not by that feoffment upon which 
the statute hath wrought. 

(k) [Siee Note 102.] (v) [See Note 103.] (w) [See Note 104.] 
{x) The word disseisor wa? in the last edition first fub- 
/iituted for disseised* 

4 *NOW 



^4 READING UPON[ 



* P. S3: * NOW foUoweth the third case of the statirte- 

tovduBg the ex- touching execution of renta; whereio the material^ 

ccutioa of rcAti j r - 

^dued.] words are four : 

First, whereas diverse pers(^ are seised, which 
hath bred a doubt that it should only go to renl» in 
use at the time of the statute; but it is explained in 
the clause following, namely, as if a giant had beea 
made to them by such as are or shall be seised. 

The second word is, profit ; for in the plotting o^ 
the case, the statute speaketh of a rent ; but after in 
the purview is added these words, or profit. 

The third word is ac si, scilicet, that they shaU^ 
have the rent as if a sufficient grant or lawful con- 
veyance had been made and executed unto them« 

The fourth words are the word9 of liberty .and 
remedies attending upon sjuch rent, scilket, that bei 
shall distrain, &c. and have such siMts, entries, and 
remedies, relying again with an ac si^ as if the grant 
had been made with such collateral penalties and 
advantages. * 
);The proTitot Now for the ^provisoes ; the makers of this law 
fonsidaSj* ^^ ^ abound with policy and discerning, as they 
did not only foresee such mischiefs as were incident 
to this new law immediately, but likewise such as 
were consequent in a remote degree ; and therefore 
besides the express provisoes, they did add three new 
provisoes which are in themselves si4>stantive {y) 

(j) The word substantive wai in the last edhioh fint sub- 
stituted for suhtractive, 

♦for 



THE stATUTE OF USES. 55 

♦ tot foreseeing that by the execution of uses, wills* P. 54. 

fornierly made should be c^erthfoWn : they made an f^S^^^Jl^ ' 

brdinance for wills. Foreseeing likewise, that by«>n^««<**] 

execution of uses woolen should be doubly advanced ; 

(z) they made an ordinstnce for dowers and jointures* 

Foreseeing again, that the execution of uses would 

mAke/rankietiemeni pHuss by contracts parole, they 

made an ordinaUice for inrolments of bargains and 

sales (a). The t^o former they inserted into this 

law, and the third they distinguished into a law 

apart, bu( without any preamble as may app^r, 

being but a proviso to this statute. Besides all these 

provisional laws ; and besides four provisoes, wfaei*eof 

three attend upoii the law of jointure, and one of 

persons bom in Wales j which are not material to thi^ 

purpose in hand ; there are six provisoes which are 

natural and true 'members and limbs of the statute, 

Whereof four concern the part of cfsiUy que use, and 

two concern the part of the feoffees. The four 

which concern the part of cestuj/ que use, tend all to 

4»tv6 him from prejudice by the execution of the 

estate. 

The first saveth him frcnn the extinguishment of 
any statute or recognisance, ai if a man had an ex-^ 
tent of a hundred acres, atid an use of the inheritance 
of one : Now the statute executing the possession to 
that one, would have extinguished his extent being 
intire, in all the rest : or as if the conuzor (x) of a 
statute having ten acres liable to the statute, had 
made a feoffiuent in fee to a stranger of two, and 

(«) [Sie Note 105.] (a) [See iJote 106.] (x) Conuzor was 
hi the last edition substituted for cmmswoncr, 

after 



S6 READING tJPON 

j"Thc proi^isoi after had made a feofFmeat in fee to the use if th4 

an the statute ^ 

considered.] cdnuzee and his heirs (b). And upon this .proyiso 

there afise three questions : 
* P» 5S* * First, whether this pifoviso were not superfluous, 

in regard that cestuy que use was comprehended iik 
the gpneral saving, though the feoffees be excluded > 

Secondly, whether this proviso doth save statutes 
or executions, with an apportionment, or intire ? 

Thirdly, because it is penned indefinitely in point 
of time, whether it shall go to uses limited after the 
statute, as well as to those that were in being at (c) 
the time of the statute ; which doubt is rather in« 
forced by this reason, because there was remedy for 
Uses at the time of the statute ; for that the execu-& 
tion of the statute might be waved : but both pos- 
session and use, since the statute, may be waved. - 

The second proviso saveth cesiuy que use from the 
charge of primer seisin^ tiveriesj ouster les mains^ 
and such other duties to the King, with an express 
limitation of time, that he shall be discharged for the 
time past, and charged for the time to come to tlie 
King, namely. May 1536,. to be communis terminus^ 

The third proviso doth the like for fines, reliefs, 
and herriotSj discharging them for the time past> 
and speaking nothing of the time to come. 

The fourth proviso giveth to cestuy que use all col* 
lateral benefits of vouchers, aid-prayers, {d) actions 
of waste, trespass, conditions-broken, and irfiich the 
feoffees might have had ; and this is expressly limited 
for estates executed before 1 May 1536. And this 
proviso giveth occasion to intend that none of these 
benefits would have been . carried to cestui/ que use, 

{b) [See Note 107.] (tf) See Noi« 108.] {d) [See Note 109.] 

by 



THEi STATUTE OF USES. 57 

by the general words in the body of the law, (e) fi^ provisos 
scilicet, that the feoffees estate, right, title, and considend.] 
possession, &0. 

♦ For the two provisos on the part of the tertenant, * P*. *$• 
they both concern the saving of strangers from pre- 
judice, &c, 

l^he first saves actions depending against the 
feoffee^, that they shall not abate. 

The second saves wardships, liveries, and ouster 
les maineSf whereof title was vested in regard of the 
heir of the feofiee, and this in case of the King only. 

(0 tSec N^te UO.3 



DISCOURSE 



58 



HEADING UPON 



* P. s6. 



♦DISCOURSE III. 



JVhat persons may he seise^ to an use^ and what not. 
What persons m(iy be cestuy que use, and xvhat not. 
What persons may declare an Use, ani whai not. 



Of the estate tif THOUGH I have opened the statute m order of 

the asturancet of ^ t •!! i ,. . . - j ^ 

thisreaUn at this words, yet I Will make my division in order oi 
*ay -ponu.es. j^^^^^^^ namely. 

First, the raiting 1* The raising of uses. 

2. The interruption of uses (/). 

3. The executing of uses {/). 

Again, the raising of uses doth easily divide itself 

into three parts : The persons that are actors to the 

conveyance to use. The use itself. The form of 

the conveyance. 

[Whatperiions. Then it is first to be seen what persons may be 

may, and may . , , , , - 

not be seised to seised to an use, and what not; and what persons 

*» "*«• J may be cestuy que use, and what not. 

The King. The King cannot be seised to an use; no, not 

where he taketh in his natural body, and to some 
purpose as a common person ; and therefore if land 
be given to the King and I. D. pour terme de leur 
viesy this use is void for a moiety. 

* ?• SP * Like law is, if the King be seised of land in the 

tight of his dutchy of Lancaster, and cov^iftnteth 
by his letters patents^ under the dutchy seal to stand 
seised to the use of his son, liotiiing passeth* 



(/) [See infra 66. Note 144.] 



likd 



* -' 



THE STATUTE OF USES. 59 

Like law, if King R. III. who was feoflfee to t^«t powm 

, may and may not 

diverse uses before he took upon him me crown, be seised to«n; 
iiad, after he was King, by his letters patent grant- "•**J 
cd the land over, the uses had hot been renewed {g). 

The Queen, speaking not of an imperial Qaeen (A) V^^ q^ew,] 
but by marriage, cannot be seised to an use, though 
she be a body enabled to grant and purchase with- 
out the King : yet in regard of the governoient an4 
interest the King hath in her possession, she cannot 
be seised to an i|se, 

A corporation cannot be seised to an use, (i) be- [Acorpor»tioa,] 
cause their capacity is to an use certain; again, be- 
cause they cannot execute sm estate without doing 
' wrong to their corporation or founder ; but chiefly 
because of the letter of this statute which, in any 
clause when it speaketh of the feolBFee, resteth only 
upon the word, person, but when it speaketh of 
ftstuy que use, it addeth person or body politic. 

If a bishop bargain or sell lands whereof he is [ABIsbop.] 
sdsed in the right of his see, this is good during his 
life ; otherwise it is where a bishop is infeoifed to 
him and his successors, to the use of I,.D. and his 
heirs, that is not good, no not for the bishop's life, 
Ibut the use is merely void. 

Contrary law of tenant in tail; (^)for if I give [Tenant in tailj 
land in tail by deed since the statute to A. to the use 
of B. and his heirs ; B, hath a fee-simple determina- 
ble upon the death of A. without issue. And like 
law, though doi^btful before the statute, was; for 
the chief * reason which bred the doubt before the * p. 5?, 
statute, was because tenant in tail could not execute 

(S) [See Note 111.] (/*) [See Note 112.] (/) [Seej 
J^ote 1 13.] (i) [See Note 1 14.] 

I2 . m 



i 



60 READING UPON 

[What pciinoni an estate without wrong ; but that since the statuter 

may and may ... _ . , 

not be s^sed to IS quite taken away, because the statute savetn wf 
w ««•] right of intaU, as the statute of 1 R. III. did ; ani^ 

that reason Ukewise might have been answered 
before the statute, in . regard of the common re- 
covery. 
FaI^ ^?**^ "^ ^®"*® covert and an infent, though under 3rears 
of discretion, may be seised to an use ; for as well as 
land might descend unto them from a feotke to use^ 
so may they originally be infeoffed to an use ; yet if 
it be before the statute^ and they had upon a suhpeena 
brought, executed their estate during the coverture 
or infancy, they might have defeated the saine ; and 
then they should have been seised again to the use, 
and not to their own use ; (/) but since the statute no 
right is saved unto them. 

If a feme covert or an infant be infeoffed to an 
tise precedent since the statute, the infant or baron 
eome too late to discharge or root up the feoffment ; 
but if an infant be infeoffed to the use of himself and 
his heirs, and if {m) I. D. pay such a sumof mpiiey 
to the use of I. G. and his heirs, the infant may 
disagree and overthrow the contingent use [n). 

Contrary law, if an infant be infeoffed to the use 

of himself for life, the remainder to the use of I. S. 

' and his heirs, he may disagree to the feofiment as 

to his own estate, but not to divest the remainder^ 

(6) but it shall re];nain to the benefit of him in nv 

■ niabder. ■ 

J^*^***^ And yet if an attainted person l)e infeoffed to an 

* i'. 59- use, the King's title, after ofHce found, shall prevent *' 

(/) [See Note 115.] («) [See Note 116.;j (») [See 
Note 1 17 3 io) [See Note 1 18.] 

4 the 



THE STATUTE OF USES. 



61 



ihe use, and relate above it; but until office the [What persons 
cestui/ que use is seised of the land [p), ^ not be seised to 

Dke law of an alien ; for if land be given to an r^^ien.1 
alien to an use, the use is not void ab initio : yet 
neither alien nor attainted person can maintain an 
action to defend the land. 

The King's villein if he be infeofFed to an use, p^ ^aicin,] 
the King's title shall relate above the use ^ otherwise 
in case of a common person {q). 

But if a lord be infeofFed to the use of his villein, r^ j^^j ■. 
the use never (r) riseth, btit the lord is in by the 
common law, and not by the statute^ discharged of 
the use. 

But if the husband be infeoffed to the use of his[Akusbtad.1 
wife for years, if he die the wife shall have the term, 
and it shall not inure by way of discharge, ^) al- 
though the husband may dispose of the wife's term. 

So if the lord of whom the land is held be in-r^j^,^! 
feoifed to the use of a person attainted, the lord shall 
not bold by way of discharge of the use, because of 
the King's title, anmmiy diem K vastum [t)* 

A person uncertain is not within the statute, norr^^j^^j^^^j, 
any estate in nubibus or suspence executed : as if l€«'tain.] 
give land to I. S. the remainder to the right heirs 
oi I. D. to the use of I..N. and his heirs, I. N. is 
not ^sed of the fee-simple, but {u) of an estate 
pour me of I. S. till I. D. be dead, and then in fee* 
simple. ' 

Like law, if before the statute I give land to I. S. 
four autre vie to an use, (v) and I. S. dieth, living 

(/) [Sec Note 1 19.] (q) [See Note 120.] (r) [See 

^ote ^21,] (/) [See Note 122.J (/) [Sec Note 123.] 

iu) [See Note 124.] (v) [See Note 125.] 

cestuy 



62 READING UPON 

[ whtt ptmm cestta/ que me{c) whereby the freehold is in suspense, 

not be seised to the statute cometh, and no occupant entreth; the 

aniise.j ^^ j^ not executed out of freehold in suspense \w). 

• p, «o. * For the occupant, thfe disseisor, the lord by escheat, 

aiaeisory and* * o^ ^^ feoffeeupon consideration, not having notice, 

^n^^l"*^^ and all other persons which shall be seised to use, 

not in regard of their persons but of their title ; I 

refer them to my division touching disturbance and 

^ interruption of uses (jt), 

[WhatftcisQDs It followeth now to s^ what person may be a 

nuyand^iay 

not be cestoy ccstuy que usc. The King may be a cestuy que use ; 

^veuse.] |jy|. j^ behoveth both the declaration of the use, and 

the conveyance itself, to be matter of record, be* 

(TheKinc;.] cause the King's title is compounded of both ; I. say, 
not a|)pearing of record, but by conveyance of re* 
cord. And therefore if I covenant with I, S. tQ levy a 
fine to him to the King^s use, whiqh I do accordingly ; 
and this deed of covenant be not inroUM; and the 
deed be found by office, the use vesteth not. E con^ 
verso f if inroird. If I covenant with'L S. to iji- 
feoff him to the King^s use, and the deed be^in* 
roilM, and the feoffment also, and it (t/) be found 
by office, the use vesteth. 

But if I levy a fine, or suffer a recovery to the 
King's use, and declare the use by deed of covenant 
inroll'd, though the King te. not party, yet it is. 
good enough (z). 

[A corporation*] A corporation may take an use, and yet it is not. 
material whether the feoffinent or the declaration be 
by deed ; {a) but I may infeoff I. S. to the use of ^ 
corporation, and this use may be averred. 

(f ) i//>— first added in the last edition, (w) [See Note 126.5 
ix) [See infra 66, Note 144,] (» [See Note 127.] (z) [Sc« 
Note 128.] (fl) [See Note 129.] 

An 



I 



THE STATUTE OF USES. ff^ 

An use to a per^son uncertain is not void in tbeOfanttsetoa 
first limitation, but executetb not till the person be uin. 
in esse'; so that this is positive, that an use shall t^ 
never be in abeyance as a remainder may be, but 
ever in a person certain upon .the words of the 
♦ statute, and the estate of the feoffees shall be in * P« ^»« 
bim or them which have the use. The reason is> be« 
cause no confidence can be reposed in a person un« 
known and uncertain; and therefore if I make a 
feolfinent to the use of I. S. for life, and then to the C^^?" «»«^»« 
use of the right heirs of I. D% the remainder is not 
in abeyance, but the reversion is in the feoffi>r, 
quousq%ke. So that upon the matter aU persons un- 
e^vtain in use, aa:e like conditi<ms ' or limitations 
precedent. 

like law, if I kifeoff one to the use of I. S. for 
years, the remainder to the right heirs of I. D. this 
is. not ej^ecuted in abeyance, (Jb) and therefore not 
void. 

Like law, if I make a feoffment to the use of my [Where the ase 
wife that shall be, or td such persons as I shall main- *^^\tl^ the "** 
tain, though I limit no particular estate at all ; yet f«offw*l 
the use is good, and shalLin the interim return to ^ 
the feoffor. . -^ 

Contrary law, if I once limit the whole fee-sim- 
ple of the use out of land, and parit thereof to a per*- 
son uncertain, it shall never return to the feoffor by 
way of fraction of the use : but look how i should 
have gone unto the feoffor ; if I begin with a con- 
tingent use, so it shall go to the remainder ; if I 
intail a contingent use, both estates are alike subject 
to the contingent use when it falleth ; as when I 

(^) [See Note 130.] 

inake 



64 



[Ofashif&ig 
use.] 

♦ P. 6a. 



[Of aa ttie to 

personi opt io 
csst.J 



[Of ^9^9 of 
abeyance.] 
[Rule in 
Shdley'tcaae.] 



[Of an ute to 
the right heirs 
«f fcofiee* 



Aeaoing tfPdfj 

make a feofFment in fee to the use of my wife for 
life, the remainder to my first begotten son ; I hav- 
ing no son at that time, the remainder to my brother 
and his hdrs : if my wife die before I have any son, 
4iie use shall not be in me, but in my brother. And 
yet if I marry again, and have a son, it shall diyes£ 
• from my brother, and be in my son, (c) whidi is 
the skipping they talk so much of. 

So if I limit an use jointly to two persons, not in 
€SS€y and the one cometh to be in esse, he shall taker 
the entire use ; and 3ret if the other afterward come 
in esse, he shall take jointly with the former ; as if I 
make a feoffment to the use of my wife that shall be, 
and my first begotten son for their liws, and I 
marry ; my wife taketh the whole use, and if I 
afterwards have a son, he taketh jointly with my 
wife (d). 

But yet where woi'ds <>f abeyance work to an 
estate executed in course of possession, it shall do 
the like in uses ;. as if I infeoff A to the usb of B for 
life, the remainder to C for life, the remainder to 
the right heirs of B, this is a good remainder ex«u 
cuted (e). 
. So if I infeoff A to the use of his right heirs, A 
is in the fee-simple, not by the statute, but by th© 
common law (/). 

Now are we to examine a special point of tl|e di&« 
ability of such persons as do take by the statute : and 
that upon the words of the statute, where diverse 
persons are seised to the use of other persons ; so, that 
by the letter of the statute, no use is contained, but 
where the feoffor is one, and cestuy qne tise is 
another. 

(0 [See Note 131.] (^ [See Note 132.] (e) [Sc# 

Note 1330 (/) [See Note 134.] 

Therefore 



THE STATUTE OF USES. 65 

Therefore it is to be seen in what cases the same [Whetherwhere 

the periOQ 

persons shaH- be both seised to the use and cestuj/ fue stis^, and 
usef and yet in by the statute; and in what cases thiltaml^heskail 
they shall be diT«rse persons, and yet in by the com- ^tlt^t^^* the 
aaon law ; wherein I observe unto you three things : common Uw ?] 

* First, that the letter is full in the point. * P. 63. 

Secondly, that it is strongly urged by thfe clause^ 
of joint estates following. 

Thirdly, that the whole scope of the statute was 
to remit the common law, and never to intermeddle 
where the common law executed an estate ; there- 
ibre the statute ought to be expounded, that where 
the party seised to the use, and the cesiuy gueuseis 
one personf he never taketh by the statute, except 
t]ierebe a direct impossibility or impertinency for the 
ui^, to tajce effect by the common law. 

And therefore if I give land to I. S. in fee (g) to. the 
use of himself for life or for years^ and if I. D. pay 
a. sum of money, then to the use of I. D. and his 
heirs, I. S. is in of an estate for life, or for years, 
by way of abridgment of estate in course of pos- 
session^ and I. D. upon payment of the money, (A) 
in of t!ie fee-simple by the statute. 

So if I bargain and sell my land after seven years, 
^e inheritance of the use only passeth ; and thete re- 
mains an estate for years (/) by a kind of subtract 
tion of the inheritance or occupation {k) of my 
estate, but merely at the common law. 

But if I infeoff I. S. in fee (/) to the use of himself 
in tail, and then to the use of I. D. in fee, or covenant , 
to stand seised to the use of myself in tail, and to 

(^) [See Note 135.] • (A) [Sec Note 136.] (i) [See 

Wote 137.] -^(>) [See Note 138.] {/) [See Note 139.] 

^ K tbc 



66 READING UPON 

CWhethervhflKthe usc of my infe in fee; in both tkeM caies Ae 
seUcSTu^ estate t^l is executed by this statute ; because a^ 
cestiir que ute estate tail cannot be re-occupied out of a i^^ 

u the same, In *^ 

shaJi l>c in by simple, being a new estate, and noi Utoe a plSiiticular 
the commoa estate for life or ye%rs, whicb ape but porliom cf the 
^^ ^^ . absolute fee y and therefore if I bargsan and s^ my 

land to I. S. after my deada without issue, (m) it doth 
*?•&!• Ddt leave an estate^ tail in me, nor vesteth any 

present fee in the bargainee (n) but 19 id an ubc ex- 
pectant. 

So if I infeoff I. S. (o) to the use of I. D. fbr life, 
and then to the use of himsetf and his heirs, he is.ii]^ 
of the fee-simple merely in course of possession, and 
as of a reversion, and not of a liemaindei^ 

Contrsury law» if I infeoff I. S. (o) to the use of 
I. D. for life, then to tlie use of himself for Hfcv the 
remainder to the use of I. N. in fee: Nowtlte hw 
will not admit fraction of estates i but I. SL is in 
\!f ith the rest by the statute. 

§qif I infeoff I. S« {0) to the use of himself and a 
stranger, they shall be both in by the statute, be« 
cause they could not take jointly, taking by several 
titles* 

Like law, if I infeoff a bishop and his heirs to the 

use Gi himself, and his successors, he is in by tho 

statute in the right of his see. 

[Of the seisini And as I cannot raise a present use to one out of 

pe^^wi^o hatahis own seisin; so if I limit a contingent or fiiture 

iuturcuie limit- ^g^ ^ ^^^ being at the time of limi^tion not seised^ 

CQ to uun»j ^ 

but after beccHiie seised at the time of the eaecutiioa 

% 

/ • 

(m) [See Note 140.] (xr) The word bargainee was first subt 
•dtuted for bargain in the last edition. (0} [See Note Ul,.] 

4 of 




THlt StATUtE OF USES. gy 

kX the GOntingenl xi^e, there is the same reason and [Of the seisins 
the same law, and upon the same difibrence which I ^^^^vho hM 

We put befom. SSTwL..] 

As if i GOTenant with my son, that after his mar- 
ifiage I will stand seised of land to the use of bimtetf 
and his h^rs i and before marriage I infeoff him to 
tiie use of himself and bis heirs, and then he marri. 
«feh ; he w in by the comihon law, {p) and not by the 
statute ', fike law 6f a bargain and sale. 

But if I had let to him for life only, then he 
flhould baipe been in for life only by the comtBon law, 
* and df the Ibe^liii^le by statute. « p, ^5. 

Now let ibe advise you of this, tifas it is net e 
matter c^kbtility or coneeit td take the law right, 
ifben a man cMieth in by Hm law in oomrse of pos« 
ssiefision, and where he Cometh in by the statute in 
emir&e of possession : but it is material for the dedd* Thit leanlo^ 
ng «f many causes and questiom, M for watnmties, Xf m^,*^ 
iactions, conditions, waivers, suspicions, and divers ^"••***'«** 
other provisoes. 

For example ; a man^s fitrmer com«liitted waste : 
after he in I'everston eovenanteth to stamd toised to 
the use of bis wife for life, and after to the use of 
himself and bis heirs ; bis wife dies ; if be be in hiii 
fee untouched, he shaH punish the waste ; if he bd 
in by the statute, he shall not punii^ it; 

So if I be infeofied With warranty, and I coVenantf 
Witii my soil to stand seised to the use of myself for 
Kfe, and after to him and hiii heirs ; if I be in by the 
statute, it is clear my warranty is gone; but- if I W 
in by the common law, it is doubtful. 

> 

(/) [See Note 142]. 

K2 So 



es READING UPON 

• 

So if I hare' an eigne right, and be infeoff^d \0 

the use of I. S. for life, then to the use of myself foe 

life, then to the use of I. D. in fee^ I. S. dieth. If 

I be in by the common law, I cannot waive my 

estate, having agreed to the feoffment : but if I aim 

in by the statute, yet I am not remitted, because I 

come in by my own act : but I may waive my use^ 

9aiA bring an action presently ; for my right is saved 

unto me by one of the savings in the statute^ 

Where there is » Now On the Other side it is to be seen, where there 

of Mw^, and ** * s^i^i'* ^ ^^^ "se of anot]i)er person, and yet it ig 

yet itu p«t of q^^ of the Statute ; which is in special cases upon the 

'ground, wheresoever cestuj/ que use had renfedy for 

the possession by course of common la^^Bhere the 

* p. 66. * statute never worketh ; and therefore i^k disseisin 

[Disseisin to an y^Q^e committed to an use, it is in him by the com* 

mon law (d) upon agreement; so if one enter as 

[Occupancy to occupant to the use of another, it is in him till dis- 



an use. J 

[Causa matri* 
snonit prielo- 
cuti.] 



yihat persons 
may limit and 
declare an use. 



agreement {q). 

So if a feme infeofF a man, causa matriniann 
pralocutiy she hath ja remedy for the land again by 
course of the law ; and therefore in those special 
cases the statute worketh not ; and yet the words of 
the statute are general, where any person stands 
seised by force of any fine, recovery, feoffinent, bar- 
gain and sale^ agreement or otherwise ; but yet the 
feme is to be restrained for the reason aforesaid. 
' It remaineth to shew what pecsons may limit andi 
declare an use: wherein we must distinguish; for 
there are -two kinds of declarations of uses, the one- 
of a present use upon the first conveyance, the other 
upon a power of revocation or new declaration ;: the 



id) [See Note 143.] (^) [See Note 144.3 



latter 



ijSk 



THE STATUTE OF USES; ^Q 

* 

Utter of which I refer to the division (r) of revoca- 
tion : now for the former* 

The king upon his letters patent may. declafe anCTheKisg.] 
use, though the patent itself implieth 9Xi use, if 
none be declared. 

If the King gives lands by his letters patent to L S. 
and his heirs, to the nse of I. S. for life, the King 
hath the inheritance of the ¥ise by implication of the 
~ patent, and no office needeth ; for impUcation out 
of matter of record, amounteth ever to matter of 
records 

If the Queen give land to I. S« and his heirs to ITU Qgeen.} 
the use of all the church-^wardens of the church df 
Dale^ tb^hpatentee is seised to his own use, upon 
that coniraence or intent ; but if a copimon person 
^had given, land in that manner, the use had been* P. 67. 
void by the statute of 23 H. VIIL and the use had[*3 H- vm. 
returned to the feoffor and his heirs. 

A corporation may take an use without deed, {s) [Acorpofation.] 
as hath been said before ; but can limit no use with- 
out deed. 

An infant may limit an use upon a feoffment, [^"^*»^3 
fine, or recovery, and he cannot countermand or 
avoid the use^ except he avoid the conveyance; (/) 
contrary, if to infant covenant in consideration of 
blood or marriage to stand seised to an use, the use 
is merely void (u). 

If an infant bargain and sell his land for money, 
^or commons or teaching, it is good with aver- 
ment ; if for money, otherwise : if it be proved it is 
avoidable ; if for money recited and not paid, it is 
void : (v) and yet in the case of a man of full age 
the recital suificeth^ 

(r) [See Note 145.] (s) [See Note 146.] (/) [See 

Note 147. J (») [See Note 148.] (r) [Sec Note 149.] 

If • 



70 

rBahmftAd 
feme*] 



READING, &Ci 

If Ibai^oTi and feme be seised in the right of thk 
feme, or by joint purchase during the cioverture, and 
they join in a fine, the baron cannot declare the use 
for longer time than the coverture, and the feme 
cannot declare alone ; {w) but the use goetb, accord* 
ing to the limitation of law, unto the feme and her 
lieirs : but they may both joiii in declaration of th6 
use m fee ; and if they sever, then it is good for so 
itiuch of the inheritance as they eoncurred in ; fot 
the law ayoucheth all one as if they j<Mned : as if the 
baron declare an use to I^ S. and bis heirs, the use is 
good to I. S. in fee. 

And if Upon examination Ae feme wiH declare 

the use to the judge, and her husband ^^e not t6 

it, it is void, and the baron's use is only^ood : the 

rest of the use goeth accottiing to the limitation of 
}«»w, 

(w) [Sec Note 150J 



END OF THE TEXT. 



[ '' J 



NOTES 



AND 



EXPLANATIONS. 



NOTE 1. p.S. (a). 

WrrH.h»™..f»si.U^ti„™der,i.™«. 

roneously stated in the ihargin of the last edition of 
this work, that this part of it related to the nature of 
us;es before the statute ; and there is reason to suppose, 
that the error hath conduced to certain false conclusions^ 
upon wluch some remarks will be made in note 6, 

'In a subsequent part of this his first discourse (p. 18}^ 
our author hath given,—- the inception and progressibn 
of the use before the statute ; and it is presutned, that 
the error above noticed, must have arisen from the 
mipposition^ that, when he said in the last page, that 
his first discourse should be ^ the nature and definition 
of an use, and its inception and progression before the 
statute',^— the word before related to both parts of the 
sentence, when it was confined to the last, as is evident 
from his speaking in the present tense throughout the 
whole of hi& obiservations wherein a definition df the 
use is giveti. 

It should be kept in remembrance therefore, that our 
author is in this place about to give, the nature and 

definition 






72 NOTES AND EXPLANATIONS. 

definition of an use as it was held to be in hisr time ; 
and iiis observations upon this head, are applicable to 
the state of the use at the present day. ' ' 

NOTE 2. p. 6. (i). 

Littleton, did not give it as his opinion, that every 
use amounted to a tenancy at will, for the case put by 
him is' not a general but a particular case, — ^it is the 
case of an use resulting to a feoffor by construction or 
intendment, and therefore, clearly distinguishable from 
the cases in the reign of Hen. VIL refered tp by Lord 
Bacon, as having controled that opimon, inasmuch as 
those cases are all of uses express. 

As no release coulcj operate by way of enlargeiatent 
of estate, unless there was privity of estate between 
the releasor and releasee, the question was, if any such 
privity existed between the feoffees to uses and their 
cestui que usej who was in possession without a grant, 
from them ? Now Littleton (See Ijitt, i^ct, 46?, 463, 
and 464.) thought, that there would be such a privity 
where a feoffment was made uppn confidence to per* 
form the will of the feoffor, because it would be in- 
tended by the law, that the feoffor ought presently to 
occupy the land at the will of the feoffee ; and then, 
the feoffor's right to the octupation, being given by 
the law, the same law, would also give a privity be« 
tween him and his feoffees, upon the principle mention- 
ed by Coke in his commentary {Co. Litt. 272. b.) that, 
* when the law gives any estate or possession, it giveth 
also a privity and other necessaries to the same:* 
Littleton's opinion then, being founded upon tlie sup- 
iposition, that privity of estate was given by the law 
as an appendage to the possession at will of the land, 
was not controled by the cases in the reign of Hen. VII. ; 

because. 



.y 



^ NOTES AND EXPLANATIONS. 7S 

because^ in each of them, the use was not in the feoffor 
by gift of law, but, by the express limitation of the 
parties : but, although the ground of Littleton's opinion^ 
was not shaken by those eases, yet, its solidity seems 
questionable, for reasons, which in the concltision of 
this note will be laid before the reader. 

However, Chief Baron Gilbert (See Gilherfs law of 
tisesy 201, 202, and 203.) has taken the same distinction 
that Littleton did, between an use express, and an use 
by intendment of Jaw, as to the tight, of cestui que 
use to the occupation ; he admits it to be regularly 
true, that, if the cestui que use entered upon bia 
feoffee he was a trespasser ; but observes, that, in some 
cases by intendment of law he might enter and occupy 
at the will of the feoffees, and he states the case put by 
Littleton as being one wherein the law gave the feoffor 
such leave to enter and occupy^ 

If it were to be admitted, that the feoffor in the cas^ 
supposed by Littleton and Gilbert had the use by in«* 
tendment of law, their reasoning would be substantial ; 
but, did the use before the statute of uses result to the 
feoffor by construction of law f on the contrary, was 
It not an intendment of the chancery ? Now, although 
the llw of the chancery may be said to be-*what one 
of the judges in an undecided case of an express use 
in the reign of Edw. IV, (See the j/ear book, 4th 
Edw. IV. 8.) held that it was— *the common law of the 
land; and therefore, speaking generally, the expres- 
sion with respect to a resulting use, that, the feoffor 
had the use by intendment of law may have been correct 
enough ; yet, in the discussion of a point in which it 
is a material consideration whether the intendment of 
an use to the feoffor, is, at law, or only iii equity^— if 
it should upon an investigation be. founds that bis use 

L or 



»4 NOTES ANO EXPLANATIONS. 

or right to the profits was merely equitable, it would 
in strictness be imddrrect to say, that the feoffor had 
that right by intendment of law* Did then the use 
Result to the feoffor by ccmstruction of law or of equity ? 
All writers agree, and Lord Bacon in this work proves, 
that, at law, the title of the feoffees to uses was by the 
feoffment perfect— that they were'entitled by it, whether 
mad^ upon or without a consideration, to the po&« 
session as well as the profits of the land,-<*>«that at law^ 
there was nd such thing as an use, or right to the profits 
bf the land distinct from the land itself, and— that it 
was only in equity that the use was supported or that 
it resulted to the feoffor : but the circumstance of the 
feoffors having im equitable right to the profits, never 
could have conferred on him a legal title to the occupa-i 
tion of the land as tenant at will, and upon no other 
ground than that of the feoffor's having had a legai 
title, can the opinion of Littleton, and the distinction 
taken by Gilbert be supported. 

The feoffor therefore in Littleton's case, not having 
had, a$ it is conceived^ anyj||^al right to the profit 
lind occupation of the land, had no title to enter ; and 
consequently, supposing him to be in possession without 
a grant from the feoffees, privity of estate would be 
wanting between the feoffor who has the use ip equity 
and his feoffees, and their release to him could not 
operate by way of enlargement of estate* 

NOTE 3. p* 6. {c) 

The observation^ that * cestui que use had no remedy 
for his pernancy of profits/ does not appear to be 
satisfactory, for^ if he had a title at law as tenant at 
will, he would hate had a remedy for his pernancy of 

profits^ 

Whatever 



NOTES AND EXPLANATIONS. 73 

Wbatever might have been the ground , of thedeci* 
sion in the case o£ the advowson, it is certain, that a 
contrary doctrine was^ after warda established and con- 
tinued to prevail ; for, upon the same principle that 
the King had a right to the presentment and other 
profits, in the case of an outlawry in a personal 
action — would he or the lord have also had a right to 
the land itself, in the* case of the attainder of cestuy 
que use ; and in a case in 5 Edlv. IV. cited infra, p. 12. 
where cestui que u^e was attainted, it was held that the 
lord should not have the land. 

NOTE 4. p. 7. {e). 

The statute 2 Hen. V. c. 3. stat. 2. enacts, that he 
who passeth in an inquest ought to have lands and 
tenements^ when therefore, it was ruled, that cestui 
que use should be a juror, it was contrary to the words 
of the statute : the reason of this construction was, 
as Frowick Cb« J. in 15 Hen. VII. 13. said, that at the 
time when the statute was made the greatest part of 
the land of England was in feoffments to uses, and there- 
fore, the intent of those who made the statute was no<: 
that cestta que use should not be a juror, for then there 
could be but few men on juries ; they therefore con*, 
strued the statute in such form that cestui que use 
should be a juror and not the feoffees, contrary to the 
words of the statute ; and this construction was admitted 
as being conformable to the intention of the makers^ 
See Co. Litt, 272 a and b. 

NOTE 5. p. 8. {/)^ 

This process was first issued by the chancery in the 
5 Rich. II. when Waltjham Bishop of Salisbury was 

L 2 chanccIlQi: 



76 NOTES AND EXPLANATIONS. 

chancellor for the purpose of making the feoffee to uses 
accountable to his cestui que use. See 3. Black. Com. 
52, 53. Reeved s Hist. Eng. Law 192* 

NOTE 6. p. 8. {g). 

Lord Bacon hath been understood to mean, that the 
instances hei*e given of the special trust unlawful were 
never looked upon as being uses, but, were ever dis- 
tinguished from uses by the denomination of special 
trusts unlawful ; his observations however, do not bear 
any such signification, for jjc is attempting to show, 
that according to the definition of an use in his time— 
as the word was then used^^it implied no covin nor 
collusion ; he does not mean to deny, that what in the 
reign of Elizabeth were termed frauds, covins and 
collusions, had been in the earliest state of the use 
considered as and termed uses. — Tliat the legislature 
conceived them to be uses is certain, since they are 
called uses in many of the statutes enacted concerning 
them, as for example the statute 15 Rich. II. c. 5. 
which was passed in order to make the use subject to 
mortipain. And that Lord Bacon himself looked upon 
them as instances of what formerly had been uses, is 
equally certain, since in a subsequent part of this work, 
(p. 23.), he adduces the last mentioned statute, and 
also the statute of provisors, as his reason for thinking 
that the first practice of uses was about the time of 
Jlich. II.— because those statutes were the first in which 
he had found the word use mentioned, and since also, in 
stating the progress of the use in course of statutes, 
he has taken notice of all the statutes for remedying 
those unlawful trusts in which (as Lord Coke observed 
in Chudleigh's case, and as Lord Bacon himself says 

in 



NOTES AND EXPLANATIONS. 77 

iQ a subsequent page,} cestui que use is spoken of » ^ 

under the title of pernor of the profits. See also notes 
S, 43, and 48. 

This false conclusion with respect to our author^s 
meaning, was perhaps occasioned, by its having been 
supposed, that Lord Bacon was giving the definition of 
an use before the statute ; whereas he was defining the 
use according to the acceptation of the word in his 
time, when the use was become a very different thing 
to what it had been originally, for originally the use 
was resorted to in fraud of the law, but by the' time 
that Bacon wrote, it had been moulded to the purposes 
of family convenience, in marriage settlements. 

It is a little remarkable, that the writer above alluded 
to, who hath contended that those special trusts un- 
lawful were never looked upon as uses, hath contented . 
himself with contrasting the use with the special trust 
lawful^ which do not bear any resemblance to each 
other ; whereas, had he attempted to support his dis- 
tinction- by a comparison of the use with the special 
trust unlawful, it wou|^ have appeared that i^ the 
reign of Richard the Second they were one and the 
same thing ; in fact the same writer by a strange con- 
, tradiction admits afterwards, that the special trust un* 
lawful for evading the statute of mortmain was the case 
of an use. 

NOTE 7. p. 8. (0- 

These instances of the special trust lawful were 
never looked upon as uses-*jt was never meant, that 
the legal estate of the land should be in one person and 
the profits be at the same time taken by another, which 
is the characteristic of an use ; but, on the contrary, 

in 



td NOTES AND EXPLANATIONS. 

in order that the object of the parties»migbt he efiec- 
tuated, it was necessary that the possession and profits 
should go together. 

Where it was intended that the feoffees should enfeoff 
over, and in other cases similar, it is probable that such 
feoffments were generally made expressly upon con-» 
dition ; or if th^ words to the intent were employed^ 
that there was a clause of re-entry addeH in case of 
default, so' that the feoffor migbt re-enter in case the 
feoffee did not enfeoff over in due time ; and in such 
cases, as the feoffor had a remedy by the course of law 
the court of chancery had nothing to, do with them ; 
but, if the feoffment was made to the intent to enfeoff 
over and there was no clause of re-entry added, the estate 
of the feoffees was absolute at law ; and then the feoffor 
had merely a confidence and ^rust {Shep, Touch. 123. 
Dyer 138. b.) which if the feoffees refused to observe, 
the feoffors only remedy against tbem was in chancery 
for a breach of trust ; but then, there would be no use 
in any one,— *no right to the profits distinct from the 
possession. 

There however appears to be a material difference 
between the three first, and the other, cases of special 
lawful intents mentioned by our author, which requires 
an explanation— thus, where a feoffinent was made to 
the intent to enfeoff over a stranger, it is obvious that 
the feoffor was not to have the profits ; but, where a 
feoffment was made because the feoffor was to go beyond 
the seas, although the reason of making the feoffment 
is apparent, yet the object intended to be obtained by 
it is not expressed : it must therefore be understood, 
either, that the deed plainly showed in the last men- 
' tioned case that the intention of the parties was that 
the feoffee should have the prol&ts; or, that the use 

was 



KOTES AND EXPLANATIONS, v 79 

was declared to the feoffee and then trusts superadded; 
for otherwise it would be the case of an use ; since 
there would be nothing to prevent the use from result* 
ing to the feoffor, and the deed would be rendered 
nugatory, as the feoffor would be again seised of the 
land in consequence of the statute having executed the 
possession to the use. 

NOTE 8. p. 9. (/) 

* A trust is the way to an use.'— It has been supposed 
by some modem writers, that the trust here spoken 
of, i s the special tru st ; and upon the authority of this, 
and of another passage iti a subsequent part of the 
readingy and upon which a few remarks will be sub« 
niittcd in a future note, (see note 43.) the same writers 
in treating of uses and trusts before the statute, have 
$aid, that ^ trusts were introduced into this kingdom 
prior to uses ;' and that * the special tru^t was the root 
from which uses sprang:' Now, supposing this to be 
the true exposition of Lord Bacon's meaning, it would 
favour the opinion which has been controverted in ' 
note 6, that the instances .before given of the speciat 
tru^t unlawful were not originally uses, but that they 
merely led' to the practice of uses— of vises too as they 
were when first introduced, for it is not meant to be 
i:Qntended bv the editor, that the special trust unlaw* 
ful which was the use in the time of Richard IL did not 
afterwards lead to the trust general and permanent 
which was the Use in the time of Lord Bacon; the 
editor's objection only is to the doctrine that uses and 
the special trust unlawfulVere not originally the same 
thing, but on the contrary essentially different; and 
to the support of which doctrine different passages in 
♦he reading have been unwarrantably vouched. 

4 With* 



80 ' KOTES AND EX:pLANATIONg. 

With respect to the Expression a trust is the way t$ 
an uscy it has not, nor was it Lord Bacon^s intention 
that it should have, the meaning ivhich has been imw 
puted to it; the word is confines the sense of the 
passage to the time in which it was written, and de- 
monstrates that the mind of the author was not carried 
back to the distant period when the use was first in« 
troduced ; but, that he was speaking of the time then 
present — ^that a trust was then the way to an use. 

To obviate any diflSculty which the word is might 
occasion, the advocates for the doctrine above noticed 
found it necessary to alter the passage, and to represent 
our author as having said that a trust was the way to an 
tise*-^however the editor declines availing himself of 
this hint for thie improvement of the text. 

But what kind of trust is it that Lord Bacon speaker 
of? certainly not of trusts as contradistinguished from 
Uses,— not of the special trust lawful or unlawful ; but 
of that trust which the civilian has defined, and whose 
definition Lord Bacon has adopted, viz. thej^es or 
obligation in conscience, by which, all trusts whether 
special or permanent are constituted. In sa3ang that 
a trust is the way to an use nothing more was meanl^ 
therefore, than that the reposing a confidence is th^ 
way to, or mode of raising an use, or to borrow art 
expression from the next page of the tvork, uses ate 
created by confidence. 

NOTE 9* p. 10. {m). 

It may be proper to observe, that the trust here 
meant, is not the truct or confidence which is the 
subject of the last note, but the general and permanebi 
trust or use itself. 

• NOTE 



r. 

' i<rOTES AND EXPLANATIONS. 81 

NOTE 10. p. 11. (n). 

Lord Bacon does not mean to deny, that the sister 
bf the whole blood had the use before the statute in 
teases where at common law she would have had the land 
tinder the xkx\q possessid fratris^ &c. ; but his objection 
must be understbod to be to the vulgar opinion, that 
she had the use under or by virtue of that rule. 

It is absurd to suppose-, that the feudal rules relating 
to inheritances ever governed the descent of the use^ 
which was not the subject of tenure, and which was iti 
law no hereditament, but merely esteemed as such : 
The sister of the whole blood, was not considered as 
having any rightto the suipcfna upon the ground that 
the nature qf the use wisis such as to give her a title 
under the rule possessio /ratris ; , but,' because th3 
chancellot' thought it equitable, where the intention of 
the parties did not specially appear, that the same 
persons should have the profits of the land, who would, 
had not the possession been removed, have been entitled 
under similar circumstances to the land itself. 

NOTE 11. p. 11. (o). 

The expression, that ' an use ensued the nature of 
the possession or land,' is to be met with in many books 
of the first authority ; thus in Lord Coke's commentary 
on Littleton, [Co, Litt. 13. a.) it is said, <^ A man 
seised as heir on the part of the mother maketh a feofF* 
ment in fee to the use of him and his heirs, the use 
being a thing in trust and confidence shall ensue the 
nature of the land and shall descend to the heir on the 
part of the mother;*' and perhaps there is room to 
suppose that the sense in which the expression hath 
been used by Lord Coke^ is not precisely the same as 

M that 



82 NOTES AND ^EXPLANATIONS. 

# 

that in which it appears to have been understood hy 
Lord Bacon 9 for Lord Bacon seems to have understood 
it, as importing, that the nature o^ uses was such as to 
caiuse them to ensue the natilfe of the land, and to be 
subject to the same rules and restrictions as the land— ^^ 
his observations in page 13, where, he proposes to 
examine the nature of uses, and says, * it will be seen 
apparently that uses stand upon their own reasons utterly 
differing from cases of possession'" favour the supposi- 
tion that Lord Bacon did so understand the expression ; 
but it is conceived, that Lord Coke's meaning was very 
different,— that he never intended to say that uses re- 
sembled the land or cases of possession, and that they 
were on that account regulated by the*same rules as the 
land ; but, that as the feoffor was seised of the land 
ex parte materna, so the use of the same land should 
go to the heirs ex parte materna and ensue the nature 
of tl)e land : and why ? Not because the use was alike 
in nature to the land, so as to cause it to descend in 
the same manner and under the same rules as the land 
itself would have done ; but for the reason given in 
the authority to .which Lord Coke refers us, 1 Rep. 100, 
that forasmuch as the land moves from the part^of the 
mother, therefore, in equity, the use which is nothing 
but a trust and confidence should go also to the heirs 
on the part pf the mother .-^Now here Lord Coke rests 
upon the 6ame ground as Lord Bacon,— that it was 
equitable that the heir on the part of the mother should 
have the use ; in fact, the chancery presumed, that 
the heirs to whom the use was limited, were the same 
heirs who had been inheritable to the land itself ; and 
therefore granted the subpiena to them : Or rather, 
the chancellor thought, that where the feoffment was 
to the use of the feoffor and his heirs^ that the use 

was 



NOTES AND EXPLANATIONS. 55 

was not an use newly created, but that the old use con* 
tinued in the feoffor >as it is said in Co, Litt, 23. (a) ; 
and then,, the chancellor, consulting (according to the 
opinion of Anderson,) the rules of law as to the manner 
in which the land would have descended but for the 
feoSment ; and finding £hat if the feoffment 'had not 
been made, the heirs ex parte materna of the feoffor 
would have taken the land and the right to the profits 
together with the land, thought it equitable as the 
feoffment had passed* the land only and not the use of 
the land, that the use as a thing undisposed of should 
go to the heirs ex parte materna in the same manner a^ 
before the feoffment ; and the suhpcena was granted to 
those heirs accordingly. And, as the use went in this 
way before the statute, so was the same person held to 
be entitled to it after. See the case of Colgat and 
Blythey cited 1 Rep. 121. 9 Rep. 126. 

Lord Coke, in saying that — ' the use shall ensue the 
nature of the land^ means nothing more than that as it 
was the nature of the land in the case above supposed 
to descend to the heir ea:* jE?ar?e wfl/erTW, therefore, the 
use of the land, shall go in the same course ; whereas 
Lord Bacon takes up the same expression in the general 
sense in which it was used by three of the judges in 
Corhefs case, who argued from it as frojoa a principle, 
that uses were not devisable and that they could not be 
limited to cease as to one person and to take effect in 
another, for that the nature of an use was such that it 
resembled an estate in possession, and was guided and 
directed according to the rules.and reason of the common 
law ; thereby, as our author observes in the next page, 
ruling uses merely according to the ground of pos- 
session. It is the. latter signification of the expression 
only that Lord Bacon combats, and the editor con- 

M % ceives, 



«4 NOTES AND EXPLANATIONS. 

ceives, that he has done so with the most complete 
success, by examining the nature of the use in every 
stage and contrasting it with cases of possession. 

NOTE 12. p. 11. ip). 

When Lord 'Dacre*s case was argued, uses had not 
only been held by the courts to be devisabte hut the 
legislature had virtually admitted the right although 
the Lord would in consequence lose his fruits of tenure, 
for a statute in the reign of Hen. VIL (4 Hen. VII. 
c. 17.) enacted, that, ^ the lord should have the 
guardianship of the heir of cestui que use where no 
will was declared ;' which implied, that cestui que 
use might devise the use, and that if he should devise 
it th< lord should not have the guardianship of the 
heir. See the statute and post 28, In Lord Dacre^s 
case, however, the crpwn contended for the guardian^ 
ship and marriage of the heir, upon the ground, that 
an yse was not devisable ; and it is very probable that 
the decision in that case, which was against the crown, 
led to the statute pf uses; which was passed a few months 
atter, 



NOTE 13. p. 12. (y). 

Although the arguments of the judges went totbi^j 
extent, yet it had been decided in a previous case in 
the 6 Ed. Vl. that an use might change from one tq , 
another by some act or circumstance ex post facto ^ 
as well atter as t^efore the statute 27 Hen. VIII; c. 10. 5 
as, if a man had made ^ feoffment in fee to the use of 
W. and his h^irs until A. paid him 40l, and then to tlie 
use of^ A, and his heirs, upon payment pf the money 
and a proper entry made by A. he should be seised ii^ 
fee^ iiro. Abr. tit, feoff, al, usesfL 30. The above 

d^Qi§iQA 



NOTES AND EXPLANATIONS. BS 

decision was not shaken by that in Corbefs case (supra 
page 11.) for there the proviso for determining the 
estate was not for an absolute, but a partial and illicit 
determination of it ; viz. that an estate tail should ceasef 
as if tenant in tail was dead ; and it was held by the 
judges, that such a proviso was repugnant, impossible 
and against law, for that the death of the tenant in tail 
was not a cesser of the estate tail ; and, that if the 
estate tail should cease as if be were dead, his issue 
inheritable to the estate tail, would have it by descei|( 
in the life of his father, or he in the remainder or re« 
version have it in the life of tenant in tail^ which was 
not possible, 

NOTE 14. p. 12. (r). 

It seems proper to observe, that the statute alluded 
to is the statute of 1 Rich. III. c. L and that although 
Lord Bacon speaks of the case as if the judges were 
divided in opinion, yet, according to the report of the 
case there were more than two (Hussey, Brian chief 
justice, and others say the books) of opinion, that 
i^estui qtie use should be bound by the warranty,— The 
case in the 3 Hen. VII. therefore, amounted 4;oa deci* 
aion, that after the statute of 1 Rich. HI. the right of 
an use might be bound by warranty. See the year hook 
^Hen. VII. 13. and Bro. Abr. iit.Jeoff. al. mespl. 21. 

NOTE 15. p. 12. (/). 

Quaere who shall have the subptma .^— ^In the other 
editions it is said who shall have the land for the lord 
shall not have the land—- perhaps Bacon said who shall 
}mve the subpoena to have the land as it is in JSro. Abr. 
feoff, aL uses 34. for the court could not decide at once 
i^t cestui que use wa^ entitled to the land, because 

9 .the 






«« NOTES AND EXPLANATIONS. 

the land was in the feofiees to uses ; they coald only 

» 

determine who was eatided to the subpana, \^hich was 
to be sure indirectly determining who should bare the 
landy since the person entitled to the subpoena could 
compel the feoffee to convey the land to him : however, 
in the case referred to, the question merely was, who 
should have the subpcena ? See the year book of 5 
Edw. IV. 7. . 

NOTE 16. p. 11, 12, 13, 20. {u). 

The words imitation and imitate have been in several 
parts of the text substituted in the place of limitatim 
and limitaie, and the editor felt himself justified in 
doing so because the opinion which Lord Bacon con- 
troverts, is, that an use resembled or imitated the 
possession or land, for it is the conceit cited by Glan- 
rille in Corbefs case which he condemns, and by re- 
ferring to that case in 1 Rep. 88, the reader will see that 
Glanville's observation was that the chancellor judged 
by imitation of the rules of the common law, and that 
the statutes in th^ reigns of Richard III. and Henry VII. 
had made uses to imitate and resemble estates in pos- 
session. 

NOTE 17. p. 12. (v). 

* The reason is not because the lord hath a tenant by 
title.'~ln the last edition the passage reads thus, * the 
reason is, [not] because the lord hath a rent by title ; 
for that is nothing to the subpcena [but] because,' &c. 
the words not and but between brackets having been 
first— and it is conceived vety properiy^-^inserted in 
that edition : but with respect to the expression that 
the lord hath a rent by title, the present editor con- 
siders it an absurdity, there being no rent in the case ; 

and 



NOTES AND EXPLANATIONS. 87 

and in order to jastify himself for the alteration which 
he has made in the t«xt by substituting the word tenant 
in the place of rent, an alteration made under the con** 
viction that it was necessary to express the author's 
meaning, he begs leave to submit the following re-« 
marks to the reader's consideration.'— Lord Bacon is 
endeavouring to point out the true reason why the lord 
was not entitled to the subpcena.'^In the case itself no 
reason was assigned. Now one reason why the lord 
should not have the suhpasna^ might have been, as Hale 
afterwards held, that a trust of inheritance was not 
forfeitable, for if it were, the lord would be in by- 
escheat, which could not be but for want of a tenant, 
and in such cases the feoffees are tenants. Att, Gen. v. 
Sir Geo. Sands. Hard. 494, 493. that if it were other- 
wise there would be a double forfeiture of the same 
thing, viz. by the trustee and by the cestui que trusty 
which would be unreasonable^and could not.be (ibid. 
489.) So it was said in the same case (page 491,) that 
the reason why a trust in fee was not in a case in Croke 
forfeited to the King by way of escheat, was, because 
that the King had a tenant in by title. Here then is 
the same expression used in speaking upon a similar 
question. 

Our author, however, attributes the lord's want of 
title to the subpcenaj to the circumstance, not of his 
having a tenant in by title, but of its never having 
been the intention of the feoffor to benefit the lord.-^ 
* The reason is, not that the lord hath a tenant by title ; 
for that is nothing to the subpcejia, Sut because the 
feoffor's intent was never to advance the lord,' &c. 

It is said in the former editions the feojfee^s intent and 

also in the fifth line below the /eqffee^s will, &c. but 

that it ought to be feoffor's intent, will, &c. is too 

obvious to stand in need of any comment. 

NOTE 



83 NOTES AND EXPLAffATlON^. 

NOTE 18. p. 13. (w). 

The Case alluded to is that of Sharington v. Strotton ; 
see Pfore?. 298, 309. wherein it was held, that in » 
covenant to stand seised, affection for the provision of* 
the heii-s male which the covenantor should beget, and 
his desire, that the land should continue in his blood 
and name and brotherly love were sufficient considera^ 
tions to raise uses. 

NOTE 19. p. 14. (x). 

The meaning is, that the court of chancery will not 
enforce a gift merely gratuitous, if the possession or 
^ate at law hath not been removed from the persons 
fi*om whom the gift proceeds unto another to the use 
of tlie person meant to be benefited ; but if there has 
been such a transmutation of the possession, then, the 
court of chancery will enforce such a gratuitous gift.— i 
The reason of the difference, arises from the different 
equity of the two cases : In the one case, the ap^ 
plication to the court of chancery would be to deprive 
a person, for example, A. of the use or profits of the 
estate when A.'s title is at law absolute, and to give B. 
a right to them although A. has not received any con* 
sideration from B. for such use or profits, which there 
could be no equity in doing.— In the other ease, the 
estate is no longer A.'s, but is at law the estate of C. ; 
the question therefore here would not be between B. to 
whom the use is declared and A. from whom the gift 
came, but between B. and C. a third person, and con<- 
sequently, whether a consideration was given to A. or 
not by B. can be no way material,— the only thing to 
be considered, is, whether B. the cestui que use or C» 
the feoflFee to uses has the equity ? Now, as upon the 

&ce- 



NOTES AND EXPLANATIONS. tt 

(kce oi C.'s conveyance it appears that the intention of 
the parties was not to benefit him, but B. ; the court of 
chancery has sufficient reason to enforce the gift to B* 
although gratuitous^ against C^ who has no equitable 
claim. 

No question could arise in this second case between 
A* and B. because, although the court of chancery 
where no consideration is given by the feoffises, will 
presume that it was intended for the use of the feoffor ; 
yet no such presumption can be entertained, where the 
feoffor himself by his own declaration proves that it 
was meant for the benefit of another. See Gilberts 
Imvofmes 222, 223. Mildmays cise, 1 Sep. 176, and 
1 Lord Raym&nd 290« 

NOTE 20. p. 14. {y). 

Since Lord Bacon wrote, the law hath b^en altered 
with respect to conveyances made by parole or word 
of mouth only, for by the statute 29 Car. II. cap. 3. 
^^ noleaseestate or interest inlands, tenements, or heredi- 
taments^ made by livery of seisin or parole only (with tb^ 
exceiption of leases not exceeding three years from the 
making, and whereon the reserved rent is at least two 
thirds of the real value,) shall I^e looked upon as of 
greater force than a lease or estate at will; nor shall 
any assignment, grant or surrender of any interest in 
any freehold hereditaments be valid, unless in both 
cases tlie same be put in writing and signed by the 
party granting or his. agent lawfully authorized in 
writing," see 2 Black. Com. '297* 

NOTE 21. p. 14. {z). 

The injudicious, application of the phrase— ^(? the vse^ 
in this place, renders it necessary to be. observed, that 

N Lord 



|» MOTES AND EXPLANATIONS. 

hiotA Bmor doe» bo4 allvde to a conwfaiioet^iifm; 
but that he means a delivery of the deed ta one ^ aa 
altom^. ia behalf of anollier.— If be Bieant a coo- 
vi^mice to uflea, bi» observations wohM qoI be re> 
concileable ; for in the third or fourth line below be 
inflarms iia^ that the person to whose use the deed is 
deHverod, that is to ^ay, the person who lakes by the 
deed, must be a parly %^ the w<Nrds df die g^nl— ht 
Other wolds, thai he must be named inthedeed, &c» 
and immediately after it is said, that m Ae cas6 of aa 
use so as the party trusted be diechred it is notmaterM 
lo whom the publication be, dial is lo say whether the 
e$siui que use be named in the deed or not ; but, by 
giving to the passage the signification above suggested 
the whole is rei^Gre4 consi^t^nt yaf^ itself as well as 
consistent with the law. 

NOTE 32k p, 15. (4. 

Although the policy of ^ common law was to en- 
courage as much as possible, a supply of commodiWes 
necessary for the consumption of the people ; and to 
that end ordained, tbiit alt sales and contracts of any 
thing vendible in fairs w markets, should bind not onljr 
the parties themselves to such sales, but otjiers who had 
right to those oommocfities; yet there were as Goke 
informs us in his exposition of the 3 1st Eiizabedi c. lit. 
many exceptions ; one of which goes directly to di»« 
prove the above opinion of Lord Bacon.—*" If the 
buyer'^ (observes Coke) •* doth know whose goods they 
were, and that the seller thereof hath at the most but 
a wrongful possessiou, tbi^, sha)! not bind him that right 
hath." See 2//!^/. Tl?. 

The cases in as well the 1.4 Hen. Vllt a9 th^ 
33 Hen. Yi. are decidedly against Lord Bacon's doc- 

* trine; 



^tmmmeaat 



NOT£« AND EXPIANATION4. n 

triae; linr in eadb of them, it wag hdd, thttt the ftro^ 
ipertjr mf^ not cbaaged, by the Mile. See tbe jTecr 
*00^, 14 Hea% VIU. «. iKrt^. Abr. Hi. CoUumm 9mi 

NOTE srs. {I. 1$. {h^. 

iThe etitt;^ hiii&ll^ uhder^od to bd uptih bblludioti 
bett^eeh th)i fiehibh Who eittbrs aM th^ ^aitgei* ; fbr 
bth^rWise, tiie sttan^ itoi bdii^ pdfitckips crtfhfifSs, 
ih€te #ouM hbt Be any tttaterial difibreticei b6t#eto 
this dase &nd tlfot nm foRb wing, iKfith l^ich Lotd ifetetHi 
tbntir^ts it. Sc6 Lih^ Jbstifafim ii, % 1. 

NOTE 2»b p. I«. (4-). 

It Was so held as earfy all ^e 5 Ed#. IV. ^^ Si1>. 
Mr./eoj^. at usesy pL Si. 1^«. Jbf. Hi. sUbpd^a 'L 

w 

i 

NOTE tB. p. 16. (rfj. 

Tte Wdids in tase tf nst^tt'vMp^MM^ fbi^ the M^ 
^pmtd #lKi #eft^ assi^bfe m ca:^ ^ haffe thist ahfl 

4th in^r. 85. 

NOTE 26. p. 16. (<?)• 

In aU the other editions it is writt^i 27 Hm. VIII, 
fol. 10. phi* 9. and fol. 30. and pla. 21. but should be 
as altered. Se^ &e T'edl' hadt. 

NOTE 27. p. 16. (/). 

The point which was dtffiidfid in Ddaimre^^ eaOt wa% 
that the feo£hient of cestui fue use in remainder was not 
within the statu^ of I Bfch. Ilt^ atill that that statute 
e(|g^ to be intended of eeshd ^ use in pMiesAion. 

71» diftcidfy hliwe^ret lo whieh Lord Bacon ftttodes, 
Ms ii0i at to the pdnt adjudged; hnk vqpoit another 

Nil point 



$i NOTES AKD EXPLANAtlONS. 

point which waa debated in the argument of the case, 
and which depended upon the question— ^whether 4 
right of use could be given by a feo£Pment or not i 
Perhaps the case and question which Lord Bacon 
states, will, with less' difficulty be understood by its 
being put in the manner following,-*A. was enfeoffed, 
to the use of B. in tail, remainder to. the use of C. ia 
fee.—-B. the cestui que use in tail enfeojffed D, in fee; 
then D. enfeoffed C. the renuiinder<-man in use, who 
enfeoffed E. Now we are to observe, that by the 
feoffment of B. the cestui que tsse in tail, the use in 
remainder to G. was discontinued, because the seisin of 
A. to that use was devested ; but tliat C/s use would 
be jrevived upon the entry of A: — A. did afterwfurds 
enter, and the question was in whom the use in re* 
mainder should be revived? whether in A. whom Lx)rd 
Bacon distinguishes by the title of the first feoffee ? 
or in £• distinguished by the title of the second feoflee ? 
or in C* the original cestui que u^e in remainder ? but 
upon this point the court was not agreed. See Plm^ 
Comm. 352, 353. 

In all the cases cited by Lord Bacon the judges 
were divided in. opinion, whether a right of use was 
assignable or not; 

NOTE 88. p. 18. {g), . 

In all the oth^r editions it is right out of land, but 
should be rentj &c. as here altered. See the case in 
itie Yearbook^ UHen. VIIL 4. 

NOTE 29., p. 19. (A). 

Lord Chief Baron Gilbert was of opinion, that the 
original of uses was from a title in the civil law, which 
allows of an usufructuary poiSsession distinct from the 

4 substance 



wm 






NOTES AND EXPLANATIONS. d« 

substance of the thing itself. See Gilbert* s law of uses ^ 
pages. Lord Bacon however, observes, that the use 
is nothing like in matter to the usus fructus of the civil 
law, but that it beareth the greatest resemblance to 
the fidei commtssio of that law. — If the editor might 
without the imputation of arrogance exhibit to the 
reader his sentiments upon the subject^ be would say, 
that tO'his mind the use appears to partake the nature 
of as well the usics fructus as the fdei c£Wimw^b— that 
both are necessary to make up the idea of an use.*— 
As far as concerns the trust or confidence which is re^ 
posed in the tertenant, the use resembles iixejidei com-' 
missio^^n relation to the object meant to be effected 
by placing that trust and confidence, viz. the posses- 
sion and disposition of the rents and profits whilst the 
land or substance of the thing remains in another, the 
use resembles the usus fructus. 

The usus f r actus y then, signifying in the civil kw the 
enjoyment of the profits by one, whilst the substance 
of the thing itself was in another, in all probability 
gave the title of an use to a similar taking of the profits 
in our law. 

As the statutes of mortmain had prevented the clergy 
from having the land itself, it seems hkely, since they 
were masters of the civil law, that the usus fructus of 
that law suggested to them the possibility of their still 
being able to have the benefit of the land although they 
were debarred from having the land itself; and that the 
plan which they hit upon was, to take shelter under 
the laity and get feoffments made to laymen to their 
own use ; and by that mean they enjoyed the profits 
of the land ; but still they had no mode of enforcing an 
execution of the trust which had been reposed in the 
feoflFec— like the hares fidei commissarius in the infancy 

of 



I 

i 



i« NOTES AMD EXPLANATtONB. 

ci thfe faki twnl/Himo^ the tafui qiu n$c was st Ant 
whoUy dt^pttndafit oA the good faitJi ^ hk feofiae.«i» 
TfaejU^' cemfndssio is more like tbeffpeckl trust lawful 
tfaaftthe ine or tro«t wihwfiti; untoittch as tte tmal 
Imposed in the homes Jidwcutrius was not to retail tb6 
kind Md suflar another to take the profita, bat to gtV« 
the kihoitaiice or land itedf to tha kores fiiei cmfU 
mmttriui as il eWdent A-ooei the leq^aest which actom^ 
{lanied die nominatioii of the heir in atich coses*^ 
' ^9gv te Luci Titi (the fa«tes fidtciariua) nt turn pru> 
mum pderis Am^iMem mmnn mdirtj emn Cm Seio 
(the \asfe$ ftdei conmusiariiu} reidatf {et) < restknas^ 
6ae Just. Inst. LH. 2. tit. M. De FUeii. Btrei. 
a. d/«««>N«hher did the %tsm fractus reseialble the tee in 
all nalpectSi because the trust oUr confidence itaa w«nt«. 
kig: ; for as the usus/ructus of die civil law e oufe l i ed 
on the usufructuary an absolute lcf;al i^ifat to Am profits 
tliera \m& no tieed of pladng a coAfide^ce in other 
^ersooB/ See Jtist. Inst. lib. % tit. 4. De usufruetu. 

NOTE 30. p. 19. (f).' 

It is to be observed, that the books of the oivil law^ 
do not oail bim cestui fue use^ (as the words of our 
author aeem to imply) but the hores Jidei cammis^ 
sarius.'^U he had been called cestui que use^ there 
would have been a stronger reason for the opinion that 
the Jidei cammisno bore a 'greater reseaoblaaGe to tbe 
i»e than did die ususjtuctus^ 

NOTE 31. p. aa (*). 

See<?t7te^« Ttntites 214, 213, tod 414, 4» editSM, 
and Mr. Watkifts's note, (note 92). 

NOTE 32. p. 20. (?), 

When uses were first introduced the court of chaitc6ify 
could not give remedy in many cases, if it could in any 

case> 



VK>TtS AND EXPLANATIONS. 9$ 

case, for wam of^ eonpetent proof c^ die trust which 
had been reposed in Ae feoifees.-«Thftl this procMf ' was 
wanting in many cases is evident from the chancellor's 
afterwards issuing the wrk of subpanta to compel the 
feofiee to answer b^bfe him respecting such trust; 
see Reeves^ MisK Eiig. Law. 193. for if thofe had 
been sufficient evidenee of the trust hy writing or othe^• 
wise» there could not have been any necessity for e^^ 
lorti&g fi>om th^ fieoflbe a conf^on of th^ fact by 
Bie«i» of the subpoena. But, when, ift eoBsequeace of 
tiiat writ the chmedlor possessed the power of giving 
femedy^ i^ does not seem probable that he then made 
^estioft to do so; because uses at that time were 
moslty for the benefit of the dergy 9 and the ehanceSor 
whowas-hknsdf an ec<^iastic> no. doubt shewed dte 
utmost favour to suich uses ; indeed the svApmna^ ae« 
eordhig tP Btaehft^e^ (3 Blacks Ornrn. 52.) was, hy 
WtMlpm Bishop of Salisbury and chaneelfor to Rii^asd 
tiio seeond^ devised for the very purpose of making 
the fcolfee to. usoa accountoble to his c^iid ju& iMy 
asr it ha^ boe» aheady observed in note 5. 

It seoBis^ more reasonable to suppose, that the ehan« 
cei^ ftfst made a difficulty about giving any remedy 
lAer the use had been mad<i sufaj<sct to the staHitesof 
mortmam; for iAien tibe dergy couM no longer be 
benefited by the use, it is probable that the chancellor^ 
(whose chief induQen^^nt in cpmpi^lin^ the feoffee to a 
performance of his trust had been to benefit the cler^) 
did then refuse the subpama tq other persons. 

Anotharreaspn, why the chaoceUqr about the tim^ 
that tho use was made subjec.t to tportmain might pro^ 
bably have hesitated to give remedy, is^^ that he wa$ at 
that time very narrov^ly watcjled by the leyislatujrOj aod" 

hii 



$6 KDTES AND EXPLANATIOJifS. 

Jiii$ newly conatituted authority attempted to be coa* 
troled. See S Heeoes's Bist. of Eng: Law. 193. 

NOTE 33. p. 20. (n). 

That is to say— '^ fear in times of trouble and civil 
wars to save their inheritances from being forfeited ; 
and fraudy to defeat due debts^ lawful actions, wards, 
escheats, mortmains, &c/* See 1 Rep* 121, 123^ 

As the gentleman, (I. P» Smith, Esq. of Gray's-Inn,) 
to whose circumspect research the profession is indebted 
for the discovery of the original manuscript of Lord 
Coke's Commentary on the tenures of Littleton, (See 
HkG Law Journal, v. 3. p. 117.) expresses himself to be 
not without hopes of obtaining Lord Coke's reading 
upon the statute of uses also, to which our author 
refers, the profession must indulge with pleasure the 
expectation, of shortly having an opportunity to make 
$o valuable an addition ta their libraries. Cooiprising 
(as no doubt it would be found to do) a comprehensive 
and methodical discussion of the subject, it is indeed a 
desideratum. If however it should not be found, there 
will be the less reason for regret in consequence of the 
very full view with respect to the learning of uses, 
which hath been taken by Lord Coke in his argument 
; on Chudleigh^s case, and the other cases in bis reports 
in which he bore a part. 

NOTE 34. p. 21. (o). 

Our author here attributes the first practice of uses 
to the reason that the lands were not devisable, in other 
words,— ^o the desire of having an indirect testamen- 
tary power over the lands by devising the use or profits ; 
and it seems likely, as the ecclesiastics generally ob- 
tained their benefactions from dying persons, that the 

doctrine 



NOTES AND EXPLANATIONS. 97 

doctrine of an use being devisable although by law the 
lands theiQselVes were hot, was established for the very 
purpose that some of the frauds to which Lord Coke 
alluded might more easily be committed, as for exr 
ample, 'the csyasion of the statutes of mortmain. See 
2 Black. C(nnm. 328* 

NOTE 35. p. i2l. {p). ' 

Our author hath jilst befoi^e informed us, that he had 
considered what the commencemcfnt and proceeding 
of uses had been in course of common law ; and what 
it had been in course of statute ; and he is now about 
to make his reader acquainted with the result pf such 
his examination and reflection upon the subject : an(f 
in considering— what it hath been in course o^ commpd 
law—- he in the first place attempts to expose the wdak* 
ness of one opinion upon the subject to whicli he coula 

... - f 

not accede, viz. that the use succeeded ihe tenure. 

Pollard and Shelly were contending, that,^— ^an usd 
was not at common law, for that it could noi be main-^ 
tained to be at the common law unkss it had had coti-^i 
tinuance beyond the time of memory, which is beyond 
the time of King Richard the First ; then, in order to 
show that it was not so ancient, they advance the argu^ 
ment that the use succeeded the tenure, ihat is to say^ 
that befoite the statute, Sluid emptores terrarunu 
Is Edw. L (passed a long time subsequent to the 
time of memory,) when a feoffment vfss made tlxe law 
created a tenure between the feoffor and the feoffee^ 
which tenure being a consideration, caused the feoflFe^ 
to be seised to his own use I and that it was not until 
after the tenure had been taken away by that statute 
that there was ati intendment of jain use to the feoffor 
where a feoffment was made without consideration; 

and 



pb votes and explanations. 

ted tfierefore, tnasmucli fts uses must h^re hH fbeir 
commencement after the statute Quia empieres ter^ 
tarufn an use cotdd not be at common law : and as the 
use had not been created by any statute there eon* 
sequendy could not be any good uses. See the Ytar 
book 27 Hen, VIII. 8, 9. LordDacre*s case. The other 
case 24 Hen. VIIL is to be found in Bra. Abr. feoff. 
aL tiseSf pi. 40.— -Now^ supposing this doctrine to be 
correct, it would follow that uses commenced so early 
as £he reign of Edward the First when the tenure 
between the feofibr and feoffees was taken away by the 
Statute 2uia emptores terrarum; and therefore our 
^uthor^ who, contended that the first practice of uses 
was not until the reign of Richard the Second^ beings 
a space of upwards of 80 years after that statute, 
* opposes the doctrine by showing that tlie argument in 
support of it goes for nothing, because by their own 
reason if the feoffment had been tenendum de capitalibus 
ifoTnmzV there would have been an use to the feoffor 
before the statute. And again— if the use was to the 
feoffor where there was no tenure, then if a grant 
had boen made of things not con3isting in tenure there 
j&ould have been a use of theni to the grantor ; but in- 
atead of the use being to the grantor in such cases, the 
law was quite contrary ; for after the time that uses 
grew common/ it was doubtful, whether things lying 
in grant did not carry a consideration in* themselves 
Ibecause of the deed. — The argument was advanced 
by Pollard and Shelly in the cases above referred to, 
ivith the view of proving that uses were not at the 
common law ; but our author^s object in disproving it, 
is, lest otherwise any conclusion may be drawn from 
it' that uses were so ancient as the time of Edw^ I.— hi* 
reaisons'for thinking that uses may be properly said to 
be at the common law are stated in the next p^g^* 

NOTE 



NOTES AND EXPf^AKATIONSl 9» 

NOTE 36. p. 21. (j). 

These words appear to imply that whenever a feoff* 
oent was made before the statute Quia emptor'es tisr-,' 
Terunif it must have been tenendum de capitatibus 
dominis ; that however was not die case^ foF it W49 
this very/statute that required it. 

Before the statute Quia emptares terrarumy. teaants 
could not de jure adien or transfer the tenure itself with- 
out theUcence of thelord; in other words, they could 
not enfeoff tenendum de capitalibus dominis without 
the consent of those lords ; but they might have given 
a part of their lands to hold of themselves^ and a feoffs 
ment always created a tenure between the feoffor and 
feoffee^— -The statute, took from the tenants the power 
of disposing a part of their lands ta hold of themadves; ' 
and instead of it ga^e them a general liberty to sell all 
or any part to hold of the neiit immediate lord. See 
IVrighCs Tenures from page 152 to 160, and au^ 
thorities. 

The words of the statute are de c^tali domino, but 
they are to be undentood ^ the next immediate lord. 
See Lovd Cokeys ex>po«ition of this statute, 2jnU. 501, 
. Lord Bacon mu»t not therefore be understood to 
spe^ik of feoffinentft in general before the statute ; but, 
where th^re was an alienation, with the consent of the 
lord; and confi$ied to such case& bis argiimmt holda 
good. 

NOTE 37. p/22. (r)i 

This opinion will derive strength from, the red^iouj 
that when the clergy could he benefited by the use and 
more especially before the introduction' of the ^i/rdmo, 
it would not have answered th^ purpose tahave constru-% 
ei an uae^ in the feoffor ; because, when it was intended 

02 W 



lOQ NOTES AND EXPLANATIONS. 

to bestow the profits pf the land upon the religious 
houses, the method yras, to make a conveyance of the 
land to a layman with a secret understanding that the 
religious houses should have the use or profits ; and in 
such cases to have construed an use in the feoffoi* would 
have defeated the obiect in view. ' 

One great inducement to the intendment of an use 
to the feoffor where a feofiment was made without con- 
sideration may have been, that it took away the tempta- 
tion to conmiit perjury and the danger of the feoflFoi^s 
being defrauded consequent upon that temptation ^ 

which must have existed in those cases, where, in con- ^ 

• 

sequence of the trust not being committed to writing 
ikhe court of chancery was obliged to depend entirely 
on the oath of the feoffee and his regard to truth for a 
knowledge of the fact, whether a feoffment so made 
without consideration was intended by the parties as a 
conveyance of the land for the feoffee's own benefit, or 
^hether it was intended that there should be an use to 
the feoffor. 

NOTE 38. p. 2fi. (s). 

Then it became necessary for the feoffee, when thtf^ 
feoffinent was intended for his benefit, to have a de. 
claratibn of the Use to hiipself where there was no con<- 
sideration given ; and if there was a consideration, 
either to halve a declaration of the use or proof of suck 
consideration* 

NOTE 39. p. 23. (w). 

See the T^ar hooky Trin. 8 Edw. IV. 5, 6. and Fitz. 

Abr. HL mbpcena pL 8. — However in the 14 Edw. IV. 

It was adjudged, that the subpama did lie against the 

heir of the surviving feoffee. See Fitz. Abr. ubu sup. 

pi. 14. 

The 



NOTES AND EXPLANATIONS. 101 

The case in the Year book 22 Edw. IV. 6, usually 
referred to by writers in treating of this point, is not 
applicable ; for it was not the case of an use.; but the 
question there was, whether the chancellor ought to 
grant the subpcena in order to restrain a recognisee 
from suing execution, the recognisor having paid the. 
money and omitted to take a release? Hussey Chief 
Justice did indeed in that case say, (alluding probably 
to the above case in 8 Ed. IV.) that when he came first 
to the .court, it was agreed in a case by all the courts 
that ihtb subpoena did not lie against the heir of the 
feoffee in trust ; but the chancellor at the same time 
fiaid, that it was the common course in the chancery to 
grant it against the heir of the feoffee who was in by 
descent. Hussey must have been unacquainted with 
tjie adjudication in the 14 Edw. IV. by which it wajs 
settled that the subpoena did lie against the heir, or he 
would not have relied upon a previous case where the 
determination was different.— This case in the 14 
Edw. IV. also accounts for its having become-«as 
the chancellor said^^the common course of the chancery 
in the 22 Edw. IV. to grant the subpoena against the 
heir. 

Mr. Justice Blacks tone (2 Conmi. 329,) relying upon 
what was advanced by Vavisor in a case in Keilway 
{Keil. 42. b.) observes, that the subpoena* s not l3ring 
against the heir was altered in the reign of Hen. VI, 
which is certainly wrong; for in the eighth year of the 
succeeding reign all the judges were of opinion, that it 
did not lie against the heir, as appears from the case 
saentioned by our author. 

A more modern writer also, afler stating that ' the 
principles of equity were so little understood in the 

4 reign 



Itii NOTES AN» EXPLANATIONS. 

ragn of Edw. IV. that the subpoena did not extend* to 
the heir of the feoffee who was in by Jaw% add»»*ibat 
this was soon remedied ; and refers to the above tnen*' 
tioned case in Keilway. Now, eren sni>poaing the 
dicta in the case in Kdlway to be correct, yet «» it 
refers to the reign of Hen. VL it is difficidt to imagine 
how any thing which passed in that reign, could remedy 
the very defect which existed in the subsequent reign 
of Edw. IV. ? but die fact is, that it was not settled im 
the reign of Hen, VL that the subpasna lay against the 
heir of the feoffee nor until the 14 Edw. IV. as above 
obaermod* 

From the first introduction of uses tx> the 31 Hen. VE 
{See Fits. Abr. fit. subpctruLj pi. 19,) it remained un- 
determined, whether cestui que use comld ha.Te the 
suipama against any other person than the feofiee hin;!- 
self ; and eten that decision seems to go no fiirther thaa 
this, that if tlie second feoffse was ^ stranger, the 
subpiena 6Xdt not lie against him; otherwise according 
toYeivertan and Wylby clerks of the roll if he was en* 
feo6ed merely on confidence.-— The question whether 
the subpama would lie against a person who gave a 
valuable consideration, but who had notice of the usQi^ 
was not determined until the 5 Edw* IV. > when it was 
held, that if the second feoffee had notice of the intent 
of the first feoffment, although the land was sold tq himj 
he shouU be bound by writ of. subpana to perform the 
)ast will of the cestui que usd, See. Fits:* Abr, iU^ subm * 
pcena, pl.^. 

NOTE 40. pw 33. (a»)^ 

It is said in the other editions 1 a Hen. VI. but should 
be the 15. as altered. See the statute 15 Hen« VI. c. 4. 
and see alsa 3 Xaves's Hist. Eng. L9», STt*, its. ' 

NOTE 



NOTES AND EJOPI^NATIGNS. 10$ 

NOTE 41. p. 24. {x). 

In saying that the first practice of uses was about the 
time of Rich. II. Lord Bacon did not mean to ass^t 
that they commenced in that reign, as is evident from 
bis taking the statute passed in the last year of tho 
reiga of £d«r. III. (see page 25.) when be comes to 
notice the progression of uses in course of stajtut^ : 
however, bis^opiniosi <:ertainly was^ that uses were not 
ia being b^ore the very close of the third Edward'9 
ireign* In that opinion he was opposed by Lord Chief 
Justice Popham^ Fopi, IB. and many others of great 
authority, who considered the cases in 8 jiss. pi, ), 
Bro. feoff, al. uses 20, and 44 Edw. III. 25. Bra. ubu 
sup' 9. as instances of uses* 

With respect to the writ causa matrimonii pr^eiocuii, 
•*»which lay where a woman enfeoffed a man to the 
intent that he should marry her and the man afterwards 
irefused-»<dthough on account of the - confidence re« 
posed in thcf man, Montague in Lord Dacrc*s case 
(sup. page 1 1.) argued, that by consequence uses were 
at common law, yet as X'Ord Bacon says ^ the case of 
matrinwnii prahcuti had no affinity with uses ;' for 
there waB no taking of the profits by one whilst the 
e0tiite at law was in another :-^he resemblance- was 
more striking between the case ci such a feoffment and 
intents or special trusts lawful, than between the former 
and uses; and it was so considered in D^ 138. b. 
But there are cases in the books exclusive ,of those 
dispmted ones in 8 Ass. and 44 Edw. III. which render 
it certain^ that the use was introduced into omr law 
much eariier than the reign of Rich. II. In a case in 
M Edw. III. for example, it is said that a person en-* 

4k(N9Ped his fnends and took the profits a son oep» 

demesne^ 



\ 



104 NOTES ANp EXPLANATIONS. 

detnesnCt see Di/er 160. a. 295. a. which is a clear casd 
of an use^ and proves that the word opus was used 
before the reign of Rich. II. although JLord Bacon hath 
obserred in the preceding page, that he had not been 
able to find any evidence of it: And the case in 
524 Edw. III. was cited by Dyer in his argument on 
Brenfs case to prove that uses were in practice a long: 
time before the 15 Rich. 11. and Dyer there said that 
the record of the case was shown in the exchequer in 
the reign of Mary. See 2 Leo, 17. In Leonard it is 
said in the. 34 Edw. III. but whether it was in the 
24 or 34 it equally answers the purpose for which it is 
here quoted. 

NOTE 42. p. 24. (j^). . 

A few remarks on this statute and the intention of the 
legislature in passing it will be proper— at law^ the feoffee 
to uses was absolute owner of the land and cestui que 
use had nothing (supra page 6.) so that if the cestui qu^ 
use had made a feoflfmeut, the first feofiee hiaving still 
the legal right might have entered on the second feoffee, 
who would have been at law without remedy, at least 
as against the first feoffee ; this suggested to the owners 
of land a mode of -fraud, by secretly enfeoffing persons 
of their lands to their use, and then, being still in pos>* 
session and apparently the owners, conveying tliem 
away to bona fide purchasers upon whom the feofiee to 
uses entered by virtue of such secret feoffments.. Now, 
as long as this fraud was capable of being practised 
with success no purchaser could have been secure ; and 
therefore, to remedy the evil, the statute 1 Rich. Ill* 
c. 1. was passed; which, after stating that * by 
^ privy and unknown feoffments purchasers and others 
* were not in perfect surety, &c* enacts^ that every 

* estate 



NOTES AND EXPLANATIONS. lOS 

^ estate, feoffment, gift, &c. &c. should be good and 
^ effectual to him to whom it should be so made had 
' or giveD> and to all others to his use against the seller^ 

* feoffor, donor, and against all others claiming only to 

* the use of the same seller, feoffor^ donor, &c/*^It waa 
not for the purpose of making cestui qtie use more in- 
dependent of his feoffee-^nor as it Jiath been said " to 
give cestui que use an alienable power over the pos« 
session as well as the use^'-^that the statute was passed ; 
but to protect purchasers against the joint collusion of 
both, by making the feoffment, &c. of cestui que use a 
bar to th^ entry of his feoffee. 

That the intention of the statute was.not to give cestui 
que use generaily an alienable power over the possession^ 
is manifest from the preamble of the statute, which 
states the grievance about to be redressed^ as arising 
from privy and unknown feoffments ; I^ut although the 
intention of the legislature was only to guard agcdnst 
the evil consequences of those fraudulent feoffments^ 
yet the enacting part of the statute being general it 
was held to extend to give every cestui que use in pos- 
session the power of disposing of the land by barring 
the right of entry of the feoffee to his use. 

Lord Bacon' observes that the statute enabled him to 
alter hrs feoffee; that is, supposing A. to be seised to 
the use of B. as the statute made good the feoffment 
of B. he might ponvey to C; to his use and so alter 
his feoffee ; for the operation of the statute was not 
Confined to those feoffments^ grants^ &c. of cestui que 
Use which should be made upon consideration. 

NOTE 43. p. 24. (z). 

* The special intent unlawful and covinous was the 
iii'iginal of uses'— ^In" consequence of this as well as a 

P former 



106 NOTES AND EXPLANATIONS, 

former expression of our author which has been coni-^ 
mented upon in note 8, some modern writers have 
held, that the. cases of special covinous intents mention* 
ed in a former page were never looked upon as uses ; 
but it never could have been Lord Bacon's meaning ; 
for one of the reasons given by him for thinking that 
the fii^t practise of uses was about the time of Rich. IL 
is, that the statute 15 Rich. U. which related to one 
of those special covinous intents^ viz. the evading 
the statute of mortmain, had in it the word use* In- 
deed in the three or four pages immediately follow- 
ing the one which contains a reference to this note, he 
has taken all the statutes concerning those special co- 
vinous intents when considering the progress of the 
use in course of statutes ; and after having stated all 
the statutes before 1 Rich« III^ and which are all in 
cases of special covinous intents, he observes (page 27,) 
tliaf" there is a silence of uses in tjie statute book*— ^ 
Now what is the inference to be drawn from all those 
passages but thaf those special covinous intents were 
formerly uses and looked upon as such by Lord Bacon? 
By the above expression therefore, it is conceived that 
Lord Bacon's meaning was, that uses in the beginnings 
or in other words when first introduced were of an un- 
lawful and covinous nature, although they afterMrards 
induced to the lawful intent general and special or use 
as it was in his time. And see notes 6, 8, and 48 « 

NOTE 44- p. 24. (fl). 

In the other editions the words are general and 
special; but should as the editor conceives be general 
and permanent ; for our author's meaning is evidently 
that what was then called the special intent unlawful 
induced to uses ; and in page 9 he informed us that 
an use is where the trust is general and permanent, 

4 NOTE 



NOTES AND EXPLANATIONS. 107 

NOTE 45. p. 24. {b). 

As the statute 50 Edw. III. bath been adduced by 
Lord Bacon as his reason for thinking that the special 
intent unlawful was the original of uses, there arises 
an inference that in Lord Bacon's opinion the first ap* 
plication of the use was for the purpose of committing 
those frauds on creditors which that statute was passed 
to prevent ; and consequently, that uses were not first in? 
troduced by the clergy for the purpose of evading the 
(Statute of mortmain as contended for in note 29 ; but 
it doth not appear to the editor, that the bare circi^m-f 
stance of the 50 Edw. III. having, a priority in point of 
time to all the other statutes relating to uses, warrants 
^y such conclusion ; because the subpwna not having 
been introduced at the time of that statute the clergy 
bad no means of compelling an execution of the trust ; 
and the observance of his trust not being compulsory 
on the feoffee to uses the payment over of the profits 
to the houses of religion was not deserving of the 
legislature's attention ; for as it was entirely optional 
with the feoffee either to pay over the profits or not, the 
clergy bad no manner of controul over the land or the 
profits of the land ; and consequently, there could not 
h^ve been any reason to apprehend from that applicar 
tion of the use those evil consequences against which 
the statutes of naortmain were intended as a safeguard : 
but whan in the reign of Rich. IL the subparna was in- 
troduced, and the chancery estabUshed, as the chanr 
cellor considered it as a part of the duty of the feoffees 
-•<ind therefore compelled them — to answer for the 
profits of the land ; and to make such estates of the 
and as their cestui gtie use should direct ; the cestui (jw 

, can^e to have a controul overi not only the use^ 

P2 qy 



10« NOTES AND EXPLANATIONS. 

pr profits of the land, but the land itself: and then the 
same policy which had dictated the statutes of mortmain 
with respect to the land, required, that the use should 
be made subject to mortmain also, and the statute 
15 Rich. II. was accordingly enacted for that purpofe. 
No conclusion therefore is to be drawn that uses were 
not first introduced by the clergy for the purpose of 
py^ding the statutes of mortmain from the mere circum- 
stance that the first statute respecting uses concerns an 
application of the use for the purpose of defrauding 
creditors; because in the former case uses were re- 
sorted to for the evasion of some statutes relating to 
the land, which had been passed chiefly from motives 
of civil policy ; and consequently, there could not be 
any reason for making the use subject to those statutes, 
until the legislature had cause to apprehend the same 
dangerous consequences from the use of the land being 
in mortmain, that had formerly existed with respect to 
the land itself; but in the latter case as individuals 
were defrauded the inconvenience of uses was in that 
particular case immediately fek, and legislative in* 
ierference sooner demanded, 

NOTE 46. p. 24. (r). 

The editor hath altered the text in this place, by 
substituting the yfoxA feoffors instead oi feoffees y be- 
cause the opinion to which Lord Bacon alludes, was, 
that when persons enfeoffed their eldest sons within 
fige, in order to defraud thp lords of the fee of their 
wardships, there the feoffors took the profits during 
their lives. See the case in the Year Booky 27 Hen, 
VIII. S, and Bro. Abr feoff. aJ, uses, pi. 4. - 

Notwithstanding Lord Bacon considered this opinion 
9s being but a conceit, Mr. Reeves in his valuable his^ 



NOTES AND EXPLANATIONS. 109 

toxy of the English law, 3 vol. 175. has adopted it ; 
and hence concludes that u^es were as ancient as those 
feoffments ; for, (he observes) no doubt the ancestor 
retained to himself a right to the profits during his 
life. If this condusion be just, uses are of a very an- 
cient date indeedeven before the statute of mortmain, 
7 Edw. I. ; and then it would follow, that the distinctioii 
between the lands and ^the profits of the land was not in- 
troduced by the clergy from the civil law for the purpose 
of evading that statute : but in reply to the observa- 
tion of Mr, Reeves, that the feoffor did take the profits, 
the editor has to remark, that it -comes unsupported 
by any reasoning, and merely rests. upon the unsub- 
stantial ground of probability — it is assuming the very 
thing which ought to be proved before it is made the 
groundwork of an argument j and perhaps the follow- 
ing positive assertion of Lord Chief Justice Popham, 
{see Poph. 77.) that * the use always went with the 
possession and was not to the feoffor' in this case, 
would of itself induce the r^der to believe, that what- 
ever the probability of the thing may, in the estimation 
of some, be, the fact was that the profits were not 
taken by the feoffor. If however Popham shouLi| 
be regarded as a sufficient authority, the most con- 
vincing' reasons are here given by Lord Bacon, to 
prove that the use was not to the feoffor, in case of the 
statute of Marlehridge ; for be says, that the law in 
his time was, that if a man enfeoffed his eldest son with- 
in age and without consideration, the profits would be 
taken to the use of the son, and j^et it would be a 
feoffment within the statute : now, if there had been an 
use to th^ feoffor at the time of the statute -of Marle^ 
bridge J in such a case as Lord Bacon hath above sup- 
posed^ their would be by the same reason an use to the 

feoffor. 




IIQ NOTES AND EXPLANATIONS. 

feoffor in his time ; but the law he observes was otfaetv 
wise, for notwithstanding such a feoffment would faie 
^thin the statute of Marlehridgej still the profits 
would not be to the feoffor, but to the use of the son. 
Lord Bacon's object was to infer what the law had been 
formerly, by proving what it was in his time in a case 
and under circumstances precisely similar. 

The fraud which the statute was passed to remedy 
was this.-— In order to prevent infant heirs from being 
in ward, it was usual to tehfeoff them of the lands which 
they would otherwise have by descent, to the end that' 
they might claim as purchasers and so defraud the lord, 
who had no right to the wardship x)f the infant heir of 
tis tenant, unless the heir were in by descent. 

The statute itself is become obsolete since - Lord 
Bacon's time,' in consequence of the statute 12 Car. II. 
cap. 24. having converted tenure by knight service, 
into free and common socage. 

NOTE 47. p. 25. \d). 

This, certainly furnishes a very strong presumption 
that < uses had not been introduced when this statute 
was passed ; for if they had the use would have been 
mentioned as well as the gift, long lease, and feigned 
recovery. 

The words arte vel ingenio cannot be understood to 
allude to the use particularly as a thing then in being ; 
but only show, that the legislature was aware that every 
thing in the way of evasion was to be apprehended 
from the craft of the clergy ; and the event proved that 
the suspicion was not without foundation, since they 
afterwards imported the distinction between the l$tnds 
and the use or profits from the civil law. 

NOTE 



tJOf£S AMD EXPtANAtlONS. ill 

NOTE 48; p. 25. (e); 

it has been said by a modeirti writer, that ' the triist^ 
tiinted at in this as well as in the statue 50 Edw. HL 
are not uses ;^ bitt as this opinion is at variance with 
\ail former authority, and (Contradicted by Lord Bacoii 
himself, some of whose observations have been cited 
in support of it, the editor is compelled (not however 
without much reluctance) to oSet a few remarks in re^ 
putation of it. 

The reasoti given for this opinion, is, that ^he trusts 
mentioned in those statutes, being of a special and 
transitory nature, want the permanent quality of an 
use ; and the reason itself wholly depends upon the 
following expression of Lord Bacon^s, in page 9. — »— 
' Where the trust is not special and transitory^ but ge* 
tieral and permanent, there it is an use.' 

It will be contended by the editor, that that expres- 
sion of Lord Bacon's does not warrant any such con- 
clusion as that the statutes just mentioned did not relate 
to lises ; and the ground upon which it will be con- 
tended, is, that Lord Bacon was not desciibing the 
nature of an use at the time of those statutes, but what 
the word use imported at the time of his reading. -^li 
Lord Bacon, when he used the expression, had been 
defining the use in the reign of Richard IL it would 
I have followed that the trusts mentioned in those sta- 

I tutes were hot uses being of a special and transitory 

I nature ; but as he was treating of the use in bis time. 

Upwards of two centuries subsequent to the reign of 

• IUcIl IL it did not follow, that because the use was 

then a general and permanent trust, that it had not 

beejpi formerly a trust special and transitory . 

^ The 



I!2 NOTES AND EXPLANAtlONS. 

The gentleman above alluded to seems to have aif^ 
gued upon the ground, that because the trusts men-' 
tioned in those statutes were temporary, and uses kre 
permanent trusts, that therefore there was a fimdamental 
dilFerence in the nature of the one and the other ; 
Ivhereas, they were exactly the same in nature; for 
the nature of an use consisted in this*^hat on^ per^ 
son had a right in conscience to the profits whilst thei 
eftate of the land at law was in another-i«-or^ as Lord 
Bacon has expressed it in page 9.. supra.—* An use 
is an ownership in trust/— Th^n> supposing that a 
right to, or the equitable ownership of, the profitis di** 
tinct from the land, to mark the nature of an use, our 
author has not asserted any where tha,t there was any 
diiference in nature between the special trust unlaw-& 
Jul and permanent trust lawful. When he used the 
expression quoted above, he was giving the definition 
of an use as it was in his time, and nothing could be 
more correct than his observations, that although an 
use according to the signification of the word when he 
wrote (as the word was then used, see page 8.) was no 
covin, yet that the special mtent unlawful and covi- 
nous was the original of uses; for there is ho doubt 
but that the use with respect to the purposes of its ap^ 
plication underwent a change-*-the idea was introduced 
fraudulently says Blackstone, 2 Comm, 329, but was 
afterwards innocently, and sometimes very laudably^ 
applied to a number of civil purposes^ 

It has been also said by the modern writ^ above al- 
luded to in support of his opinion, that * it app^r» 

* very clearly, jbhat the legislature did not conceive the 

* trusts mentioned in the statute 50 Edw. III. c. 6. ta 

* be uses:, that statute made the lands, subject totheisy 

* liable 



NOTES AND EXPLANATIONS. US 

^ liable to the execution of the creditors of cestui que 
*- frmtin the handB of the trustee $ whereas the lands 
' of cestui que use were not liable to executions in the 
^ hands of the feofiees^ neither was the us& itself ex* 
^ tendibte for the debt of cestui que ikscy as appears by 
' a subsequent statute/ yn%\ 19 Hen« VIL c* 15. But. 
the fact is, thiit the statutes 50 Edw. 111. c 6. and 19 
Hen. VIL c. 15. both related to uses, and had in view 
the remedying of the same eyi]^ as will appear from 
what our author himself slys in page 26: the only 
difference is| that the former of those statutes iuded by 
the 2 Ric. II. c. 3. gave relief .to judgment creditors in 
cafes of sanctuary men only ; that is to say, to those 
Who made feoffments of theiir lands upon trust for 
themselves BUd then fled to - privil^i^ places ; and 
the latter statute, as far as it relates to creditors by 
judgement, made the relief against cestui que use ge- 
neral:. 

We have seeti by what argument the opinion that 
the trusts mentioned in the statutes 50 Edw^ IIL c. 6« 
and 1 Hie. 11. c. 9. are not uses«->has been istttonpted 
to be supported : and with respect to authority, it is 
believed that every authority has looked upon those 
trusts as uses\,'-^Montague in Lord Dacr^s case (supra 
i L) considered the trusts in 50 Edw. III. and 1 Ric IL 
C; 9; uses \ and York in the same case^ in speaking of 
the last statute so considered them : so again Plawden 
in fa& argument of the case of Basset and Morgan v. 
Manrely after observing that the statute I Ric. IL 
t. 9.. makes recoveries good against those who take the 
profits says, which is as much as to say, cestui que 
use. See appendix to Plowd. Com. 3. Coke also, in 
Ilia argument in Chudleigh^s c%s^ {I Rep, 123.) ob? 
serves expressly^ that the pernor of the pro&ts men- 
:. . Q . tioned 



114 itOm& AKI> fi^nLAKATlOMS. 

itoned hi tkb Btetute of I ftk^ It. 6. 9« itas e^siut ^ 
u/i : and P4>pham aba Pop/l. 7i. tvitb rwpeef ta the; 
iAatttte 50 Eitw« HL w ti^ the snikie effect. 

Thai €hey were cocisidei^ gto relating to uses by 
Lord BacM aJso, is eertaio, fr^m bia mentionkig those 
HaiUitea ^ben he states the fMrdgressioii of ii«e» io coutse 
i6f statutes^ and from hia observation in page 2^, aftei' 
lie had feviewred ti»e other statalea and alluding ta 
those in Qommon with the ethers-^' T^da is the whole 
isoitfser of statnte kw touching vbbs.* See ako notea 
9. S. and 49« In fiaie, there ia no authority in support 
•f the opposite doctoine« 

NOTE 49. p. 25. {g}. 

At Aas t»|ae> the sevend statutes passed in one year 
did not follow, eaoh other chafKer aftrar chapler 
thro«ighdut the whole year, as now ; but the acta of 
each session were kept separate from the acts passed in 
the odier sesskais of the same year. Thus the i^eond 
act passed in the fint session of the 2 of Rie, Ih was 
cBfllJQiguidied by date seeond chapter of the first statute 
«r session of Ric. 11. ; and so the third act passed in the 
^ seeond aeasion of the same year was distinguiibed by 
tibe third chapter of the seeond s$atut€ or session of the 
S t6Q. B. 

NOTE 50. p. 27. (A). 

In all the editions preceding, the laat, this and the 
fDllowing Une read thus ^ as defendants ia precipes 
whether they be ereditom, disseisors or lesscnea^ aad tiiat 
only in case of mortmain,'**^ the propriety of insenkg 
the words demandani's miA disseisees in the room <^ 
defendmiis and disseisors is obvioua; bvet the akeratio» 
of the words and that to the wojd except seems to^ 

]^eq^ire 



^ «-'H 



W©TE8 AND EXPl.ANATH)NS. i}$ 

^teire an obser^^ioji, 0Uie9 it malerUJlj chaDges dia 
eense <tf die pftfaage^»<^Lord BaPcon bs $tated j^enerMlj 
Itbat no relief is gir^n to purcbaser^^ that coine in by 
the party, but to such as come in by law. Now, the 
pordf, nni thai only in case of mortmain, gave this 
iDeaning to the whole, that even to those who came 
in by law relk^f wa$ giveo ooly in irase of mortmaic^ 
although he observes at the same time that such relief 
was givea to demaarfants in pr^ipes whether preditorv, 
idisseisons, (HT lessors^ who all cooia iu by act of law* 
but yet have nothiug to do with mortmain : and in 
ad4iti0B to the contradictbn whiich the words and that 
joceasicmed^ it is to be observed^ that in the case of 
mofUmil^ relief was not given to those who came in 
^y IfCWf It eo^U not thefnefore bfire been Lord Bacon'a 
iiitnstioii to have vsed t^e words a$id that. 

WitJb He^eet to. the word txcept^ it is presumed, that 
ai sofBetent reason for its beiag substitutedf will i^- 
pear, wbsn it is considered that in ease of mbrtmaia 
relief was given by the above i^entioned statute, 
15 Ric* II. c. 5. to those who come in by the party, 
for that statute eaaclaed, that the lands in use should 
.ipvithilk % 0ertaii) time be aniortised by the lieence 
ef the ki^g m4 }ov4s or aUeoed to spm^ other use. — 
(jord Bacon therefc^ hj»vi«g said thai in a}! the couiae 
of statutes which he had spoken of, imd whereof the 
aaid statute, i^ Ric. 11. was one there was no relief 
jgiven to those lyho came in by the party, must have 
intended to qualify the generality of that assertion l^y 
an exception of the Case of mortmain. 

* * 

NOTE 51. p. 27. {i). 
From this it appears to have been Lord Bapon*s opi* 
iiion, that uses had been hitherto in course of statutes 

Q 2 what 



1 1« NOTES AND EXPLANATIONS, 

what in his time were not called uses, but distingtlkbed 
from uses by the title of special covinous intents, 

NOTE 52. p. 27. (*)• 

That is to say— -uses at that period bore a reset)-*' 
blance to th^ use in the time of Lord Bacon : they had 
become general and permanent. The practice of mak* 
ing feoffments to uses was not when the statute 1 Rici 
m. was passed, resorted to for the temporary purpose 
of committing a particular fraud, but fear had now 
become the instigator— the fear of losing the land if 
they themselves continued seised of ii during the civil 
commotions, when each party as Blackstone observes, 
2 Comm, 329y as it became uppermost altematdy at- 
tainted the other.— This led them to trust the possession 
of the land to some person in whose hands it would 
probably be more safe than in their own ; hence the 
reason, jrhy Richard the Third was enfeoffed in so 
many cases. For the cause of making the statute 
'i Ric.in. c. 1. see note 42. 

NOTE 53. p. 21. (I). 

The editor is inclined to think, it was Lord Bacon's 
meaning, that the statute was not confined to feoffinents, 
&c. upon good consideration but was generally worded ; 
and cdnsequently, that the passage ought to end widi 
the word generally and a new one commence with the 
word in ; but it does hot appear sufficiently obvious to 
uxduce the editor tb alter the punctuation. ' 

NOTE 54. p. 28. (wi). 

In the last edition it is said the 56 ^ owing most pro- 
bably to an error of the press, for Edward III. reigned 
only fifty years and a few months. 

-NOTE 



s 



KOTES AND EXPLANATIONS- UT 

' NOTE 55. p. 29. (n). 

. The use returned to the feoffpr and his heirs in this 
p^e, see page 61. 

NOTE 56. p. 29. {o). 

There is one statute which Lord Bacon has omitted 
to notice which enacts, that grants made by fraud of 
fcovin of chattels to the use of the persons that made 
the same, shall be void. See 3 Hen. VIL c. 4^ 

NOTE 57. p. 34. (q). 

* For the first of them-^There are three impedi- 
ments^ The word them was in the last. edition sub- 
stituted for these ; and it has been deemed proper to 
continue the alteration as Lord Bacon alludes to the 
first head of the particular inconveniences spoken of 
above, viz. that conveyances in use are weak for con- 
sideration. 

The word there is an addition by the present editor 
-who thinks it impossible that Lord Bacon could have 
meant to say — ^ For the first of the particular incon- 
veniences are three impediments/ because such an ex- 
pression would have been not only ungranunatical but 
without sense. By the words for the first of them it 
is conceived that Lord Bacon intended to intimate, that 
he was about to treat of the first head of the particular 
inconveniences, and that he then intended to commence 
his observations on that head with observing—There 
are three impediments, &c. Indeed this conjecture is 
sanctioned by his stating the second head relating to 
trials in a similar way in the next page. 

note: 



ni NOTES AND EXPLANATIOirS, 

NOTE 58, p. 35. (r). 

For trials by w^ger of law, ^Bd wager of, battel 
jpentioned in the second line below, see 3 Blacky 
Cantm. 341 and 347. 

NOTE 59. p. 36. (s). 

Jn the former editions it was as a hard law, but should 
be as it is conceived is a bard law ; for in page 12 the 
author observes, the law of collateral warranty is; a 
hard law, and his meaning in this place appears to be 
that the collateral garranty although it is in all c^ses a 
hard law, yet it grew in doubt only in favour of pur- 
chasers. 

NOTE 6Q. p. 37. (w). 

The word, demandands bath been in this edition ii^-* 
certod in the plaqe of defendants, 

NOTE 61. p. 37. {v). 

In the other editions, it is estates and tiihes~^\h& pro« 
priety of the alteration firom tithes to titles is obvious. 

NOTE 62. p, 39. {y). 

Whether it was the intention of the legislature utterly 
to abolish all conveyances to uses, was a disputed point 
in the time of Lord Bacon, and one upon which a dif- 
ference of opinion exists at this day.— It was formerly 
a point of considerable moment, inasmuch as a very hn- 
portant question was governed by it, nambly, whether 
any uses should be preserved by the equity of the 
statute which otherwise would, by the strict construc- 
tion of its letter be destroyed ?•— Thus in ChtcMeigV^ 
case Periam and Walmsley who argued in fevour of 
the contingent use, contended, that it was not the inten- 

4 tion 



abtts Aiir> kxPLANAtiONS. m 

tion of this statute to extinguish or eradicate atiy usa^ 
(I Sep* 132); ^ilst on the other htind, the eight 
justicea and barons who ar^ed against it, held, that 
the statute should not-^against the express letter of it 
--•be construed by equity for the preservation of cbn-i 
tingent uses, {itfid. 138. 1 Jnd. 335. 343, 944.) and 
indeed this resolution of the right jtidges in Chttdtdgh^ii 
case may be regarded as a judicial acknowledgment 
that the intention of the statute was to root out the 
practice of making conveyances to uses, and tiotwithi^ 
stanc&ig the observations of Lord Bacon in this place 
i^ainst tfaat^ conclusion, it does really appear to the 
present editor to be wanfanted by the statute itself. 

The editor proposes^ to state in this note, the argu« 
ments in ferour of the opinion tfaaf it was the intention 
of the legislature in passing 2t Hen. VIH. c. 10. to 
extirpate the practise of making conveyances to uses^ 
examining as he proceeds all that Lord Bacon has ad^ 
tanced widi the view of lessening the force of those ar-^ 
guments ; and in the ne^ note to examine the argu-» 
ments of Lord Bacon in support of the opposite doc- 
trine. 

The statute, then, after stating that the evils of which 
it complains arose by reason of fraudulent feoffments ^ 
fnesf recoverieSj and other like assurances to tises^ 
toTtfUences, and trusts^ goes on to say, that for the 
extirping OTui extinguishmetit of all such subtle prac* 
Used feoffments, finesy recoveries, abuses and errors 
heretqfjore used and accustomed , Kc. — the estate of the 
feqjfke skail be m cestui que w^^ .— Now, if the intention 
of the legisfatuve is to be collected from its own po- 
ikdft etpressions declaratory of what that intention 
1m», tiie object which it aimed to attain was the ex^ 
Urfing of all such subtle practised feoffments to uses 

theretofore 



iiO NOTES AND EXP1;ANATI0NSj 

theretofore used; Lord Bacon says^ that the extii^ 
|Nttion which the statute ineant was plain to be of the 
feotifee^s estate^ and not id the form of cbnveytoce ; 
but tliis is Saying that the intention of tho^ ^ho made 
the statute was not that*which they themselves hare in 
diefimte terms declared that it was-^it is giving to 
plain and express words an exposition different from 
their clear literal import^ wad^^quvties in verbis nuUd 
€3t ambiguitas ibi nulla expodtio contra verba expressa 
fenda est. 

Even if that intention had liot beeii })ositively ex- 
pressed, there would have been sufficient matt^ in 
the 6ther parts of the preamble to justify a conclu- 
sion, that the legislature could not have intended that 
feoffments to uses should continue— k-feoifments, to whicli 
the epithet fraudulent is applied as if to mark the 
odious light in which they were viewed. To suppose 
that the legislature meant to continue such feoffiuen^ 
IS to believe that it meant to countenance frauds. 

The words heretofore used also seem to admit of an 
inference of its having been expected, that the feo£f- 
ments to uses which had been used before^ would no£ 
be used after, the act* 

As all the bepefit which ceshu que use derived from 
tlie us^, as wejl as all the mischief which the use oc^ 
f^asioned to other persons, arose, in consequence of 
the use or equitable right to the profits being separate 
from the possession, it was perhaps expected by the 
makers of the statute, that the transferring of the posses^ 
sion to the use, and thereby blending them^ would 
have had the effect of extirpating the practice of con* 
veyances to uses^ by taking away that temptatien to 
the practice which existed when the use was dbtinct 
from the possession^ 

fey 



KOTES AND EXPLANATIONS. Wl 

« 

By tranrferring the possession to the use, it was in 
fact rendering a feofiment to uses a nullity as to any 
advantage to be derived from the use ; for if a feofF- 
ment after the statute had been made to A. to the use 
of B. by the operatibn of the statute it would have 
been the same thing as if a conveyance of the land had 
been made to B. in the first instance; for B. could 
not dbpose of the use by will in this case, as he might 
have done before the statute, inasmuch as a devise of 
the use by reason of the possession's being united with 
it would hate amounted to a devise of the land itself^ 
and lands at the time of the statute were not de<^ 
visable* 

Another consecjuence of uniting the possession and 
use, was, that if the cestui que use died^ his heir with-^ 
in age, the lord would have had the wardship of the 
heip*-Che wife of cestui que use would have had dower^ 
&c. &c. B. might therefore as well have taken a con-^ 
veyance of the land to himself, as to a trustee to Vis 
use ! and for the same reasons no one could have had 
any inducement to convey away the possession for the 
purpose of taking back the use to himself, seeing that 
the use, in consequence of the possession being united 
with it, would be subject to the same incidents of te^ 
niu«, &c. as before the conveyance made ; and that 
cestui que. use was then as incapable of devising thei 
use as the land itself. A devise of the use, was in fact^ 
aft^r the statute equivalent to a devise of the land and 
therefore void. But it is conjectured, that a ne\|r mode 
at indirectly devising lands was struck out between 
the statutes of uses and wills by means of feoffinenttt 
to the use of such persons as should be appointed by will ; 
thoreby making the will a designation of thie person t<> 

R take 



119 NQTXS ANS EXTLAMATIONA; 

iiike the iifl»» and QQt a deviM Qiff tlie tise tfaea Tei^ In 
Ihe tQ9la|fir ; b«l f or duf aee itt&n Qdls ao* 

Againi^tlie worda a^^ and err«t^ whkfa am joinoi 
mih %h» ffpfioaiom^ &c. abow atr <»gljry tbal the ataAuto 
IMuat to i«tot ooi tiiQM £Miffi»eiitfii^ &er and the akus€m 
tnd o^rarv to wUdi thiegr l»d 'giveo Tkew«*-^Wisw]i die 
«lAliite 4iya thmfwr tte ertmgmskmeni ff mtkftt^^ 
mfiSMfi, fdnm^ 0»d ^vrmsimJ^. such and sock tiUinga 
waeledwiy k to h« sf^poaod thaik d^a statute neaofe 
ijbat th0aa fe^^fibanta, abuatii^ aod cnNnrs^ adioald caft* 
t^nvfit.^ LcskI Baoon^ in coawxientiBg^ upon those vnoadm 
sqrif ^ that Biay beaa alMiga of the faiw whkk » not 
agamst law'— <idinitted~but when the statute praiidBs 
m»nkt» t^e aiK>vedr piavpose of exttngitisbing sach 
a« al^iiaife i% tfa^ve: net eiseiy reason to snpposethatiii 
w» h^witA to pvevenii the fiaftimpiai&tice of it> 

'Wofi 14^ sectMsa af tiie a<^ abe^ fafnuAw a very* 
atroQ^imaw Cor tbud^ag, tbal^ Ae statute: memt t» 
dtescwitesaiMse the practice of tiBe» m fature ^ for kr 
giit^ to& the, c^lMif jfitf f&^, henefia. of TouckBae^ akU 
]^ya0> &^* cffiJLjc tahere bb estate shoaki be: ^oecu^ 
Hitefcdil.a. yeajE^ from the^^tmeof tba sjatute, Tia* witife 
t)te I of lii^ ]i506^ but not after; Nim^if it ha4^ bem^ 
itHMlodedi tOipiresecy^ thepmctice of uses^ the same ad» 
^>M^g^i would hati^faeen also given to sudb cdUs fue 
me. a^b ^nsmJA baire tbeii: estatea eaecutad alter that. 

%»Qf3t the abovei grounds di»refo«e< it appeass-to tfie 
^^$set mik lunreoaQQabb to. eonoludey that theintentioii 
Cifitbftl^isiaturjB was. (what tbeact itself say ») die ^ctir*^ 
pctfipn cf thosei fwiiduie&t ieoffiaeata ta uses and^tbtf 
ejK|iiiguisbment-c^ theiabuses; which existad ia eonse**- 
(j»^l^Qa:o£ those feoffiaents; andduutljaie way whid>^ 

thqp 



KOTfS AND EXPLANATIONS. Its 

lliejr thought the fittest for ttich extirpation ttd extin^ 
guisimiettt was the rendering iuoh feoffoieiits tinulHty 
by aniiexing the poM6ssii»i to the ii90«-«>-Tfae mil^l: 
will be conUnued in the next note* 

NOTE 63. p, 39. (z). 

In attepptiog to controvert arguments which Loi^ 
Baccm has pronounced unanswerable^ the edited must 
be understood to speak with the utmost difiidenee. In 
the |«ecedii^ note it bath been contended, that the 
transferring the possesnon to the use was not tlie uki« 
mate design of the legbhtture, but that they had a 
further object in view, riz. the extirpation of the 
practice of uses ; and that the blending the possesion 
and uae was tibe mean wluch they provided to promote 
that end, conceivii^ as aH the mischief had arisan 
from the possession and use being separate, that unit- 
ing tbem would bare the effect of putting an end to 
the practice, by rendering it unaTailmg^ but to this 
doctnoa our author is decidedly hostile. 

The first argument advanced by hka to prove thelt 
die statute meant not to suppress conveyances to uses, 
is-«that ii hath in the very branch thereof werds * de 
futuroj * that are feized or hereafter shall be seized.* 
Now, without rdying on the argument,, that t^ose 
words were inserted iu regard of usei$ suspended by 
disseisins, tb^ do jsot appear to me to authorise 
the optnioQ thiNt the statute meant to contintie uses ; 
fer whatever might have beea the object of the statute^ 
those future words were most certainly necessary to 
perfect the means which the legislature had provided. 
if the act had raerdy said> ' where any person or p^« 
wa^Handor hewiMl it would ham applied to eon« 
wymces to uses at the time of the aot^, but would not 

R 2 have 



IM NOTES AND EXPLANATIONS. 

have extended to uses created after.— The only legf ^ 
timate inference from the circumstance of the statute^s 
haying words defuturoj in the humble apprehension of 
the editor, is, that it was foreseen by the legislature 
that uses would continue unless some such words were 
inserted, but not any such inference, as that the legis- 
lature expected that uses would continue or meant to 
countenance their continuance. 

The second reason*-* that no hereditaments shall 
pass, &c. or any use thereof,' is sufficient to show that 
at the time of the statute of enrolments it was thought 
that uses would continue in the case of bargains and 
sales, but not that there would be conveyances to uses 
after the statute ; nay, the presumption is, that it was 
not thought that uses would continue in other cases 
than bargains and sales, or they would have required 
an enrolment of all instruments whereby the use might 
pass. If they had thought that there would have been 
recoveries (fpr example) to uses, there would have been 
the same policy in requiring an enrolment of the deeds 
to lead the uses of those recoveries, for the purpose of 
preventing a secret transfer of the land by a tranfer of 
the use, as there was in requiring an enrolment of bar- 
gains and sales. 

But it will be asked, what reason could the legis- 
lature have had for supposing that uses would continue 
in the case of bargains and sales, and not in other 
cases ? If the editor has taken an accurate survey of his 
subject, there was a sufficient reason, and it is this— 
thut as it ytras probably thought that the annexing the 
possession to the use would render conveyances to uses 
nugatory, th^ practice of making feoffinents, levying 
fines and suffering i:ecoyeries, to uses, would fall to the 
ground \ but with respect to bargains and sales at the 

time 



i 



NOTES AND EXPLANATIONS. 125 

time of the statute, the having of the use was not the 
primary object ; on the contrary, the intention was, 
that the bargainee should have the land itself; but where 
by reason of any defect in the feoifinent, or by the 
refusal of the bargainor to make such feoffment ac- 
cording to his contract, the bargainee failed of having 
the land itself, in such cases the court of Chancery 
considered the bargainor after payment of the pur- 
chase^money, as being seised to the use of the bar- 
gainee : the court, of Chancery therefore, ruled by the 
same equitable motives, would, it might have been 
supposed by the legislature, continue to make the 
same construction in similar cases, and to prevent the 
land from passing secretly in this way an enrolment 
was directed. 

The motives to the raising of uses were different in 
general cases to whsvt they were in the case of bargains 
and sales ; for in general cases, by which is meant in 
cases of conveyances made to uses, the end and intent 
of those conveyances, was, that the use might be 
disposed of distinct from the land ; and that it might 
be free from those charges to which land was subject ; 
but as these things c0uld not be after the land was 
transferred to the use,' it must have been reasonable to 
suppose, that, as the motive to the making those con- 
veyances 'necessarily ceased, the practice would cease 
also ; but in the case of bargains and sales, tue court 
of Chancery gave the use to prevent an injury to the 
bargainee, and as the same equitable motives would 
continue, it was reasonable to suppose, that thfe 
construction of an use to the bargainee would con« 
jtinue. 

The statute of enrolments, therefore, does not prove, 
that it was expected there would be conveyances to 
uses after the statute. 

4 With 



126 NOWS AKD UCPLAMATIONS. 

With BQipeot to the third reason s4vsoced by our 
aiilhor, »d which is gromuied ttpoDtheitatiites «peak- 
iiig in one of the proirisQs of uses amcb and executed 
after the 1 of May 1536, the same remarks wfaicb were 
siftde on the finit veason, apply with equal force here, 
that because they tfaov^ it posnUe that la^es might 
iMK^tinuGy does not farour the opinion-«<4nd much leas 
prove*«^hat it was intended that they should continiiey 
ar that it wan expected they woold, fbr the kgisbtiire 
might have supposed the possiiSit^ of their being ceok 
veyanees to uses after the statotc, and yet bare em* 
49C^rtat3MMl an expectation that there would not be «iy 
aoch oooTeyances in consequence of their hariog by 
tranaferring uses into possession so altered the use as 
to have taken away every inducement to the f»actiee. 
But Lord Bacon says, if they had had any sudi intent, 
the ca$e being so general and so pbdn, they would have 
had words express ' that every limitation^ of use made 
aftcr^he statute should have been void.' This aigu- 
snent, which Lord Bacon seems to have conadered the 
strongest, really does not appear to the e(Ktor to be a 
v^eiy forcible one; for where dt&rent means present 
theoiselves, which are likely to attain the end in view, 
does it necessarily fcdlow, because the most prompt 
, were not made choice of, that it was not intended t5 
attain thait end at all ? <»: if such an inference coukl be 
drawn where the intention was dubious^— could it be 
entertained in a case where it is said in poutive terms, 
that the means were provided for the very purpose of 
earrying that intention into execution ? And here the 
legislature says, that it is fbr the extirping uid extin** 
guishment of those fraudulent feoffments, &c. to usea 
and the abuses, and errors consequential thereupon, 
that it is about to enact that the estate, kt* of the 
feoffees shall be in cestui que tcse. 

It 



NOTES AND EXFLANAtXONK W 

.. n k imponible to ti^ poshrrdy, niiytbelegisbl^im 
f M P efei fcd the joiniiig the nte and -poBmaian, m order t» 
pceirent the practice of ccnrejrflEncev to oms, rather tlwii 
to dedare. OSS at ODoa void ; but the editor will be aU 
lowed to observe, that the practise of iisev was at ths 
time cf the statute pievaleDt tfaroagbout the Ungdom ; 
aad it might therefiore hive been thotigfat by these whiir 
jlmamA the act^ that the most lifcdr^ way to make it 
]nsi^ waS) to male use of isidiMct mdier thin diieet 
BHsai:. and pedla|is: the means whicb werepnmdody 
coniidcred m eftsy powt (ai view^ ware the wasesi; 
for if, as Lord Bacon suggests, the act had said, that 
every limitation of an nse ma^ after tiie statute should 
iKviid,. it ipooid have taimn m ases> on bargaina and 
sain wUdx aroae fsem the eqmtabfe oonstractioB of thtt^ 
ooBTtof Chancepy, and finsm^ motms the most pwpo;. 
andusssupoabargaini. and sales, Lord Coke dbmsgwt^^ 
ikgy ti]ougfatc<»i«tenisnt 10 continue, 1 Saq>. 10$^ 

AooiJier season why die nu&ent of tfaeactmost hsvm 
had objections to dechure every limitatiooiof uses wfaiob 
ahould be made after the statute void, is, that by a 
statute passed only four years before, viz. the 23 
Eten. VHL e. ro« such* uses as those to parish churches, 
dsapd^, gwidSf fivtermtxes, Sec. nor being corpora^ 
tion^^ were-madle good, provide* that such uses wen» 
not appointed to continue above the term of ^ yeaer 
from tfieir comsneneement. Now if they had said in 
the statute 2? Hfen, VDI. diat ^ eveiy limitation 6f use* ' 
m^de after the statute should be void,' then the au« 
thority which had been so recently g^ven by the statute 
129 Ifei. "Vnl'. otlimjting such uses^ asF are mentioned 
in.itfiat statute would have been tdsen away; but' ir if 
{rfmir thalrtbe' legislature did not mean' tointe r fem w ith 
tlnrciittsiof inesj; beeause^ the statute !27'I!bi. VIII^ ir, 

' so 



Its NOTES AND EXPLANATIONS. 

$o worded as only to have operation where there il & 
ferson seised to jthe use of another person or a corpora* 
tion, and in the case of 23 Hen. VIII. they are not 
so seised but only to the use of a thing, work, orfrater* 
nity not incorporated. 

' Viewing therefore the three reasons advanced by our 
author in the above light, the editor cannot but ac^ 
quiesce in the sentiments of Coke, that it would be 
absurd to say that the makers of this act intended to 
preserve uses when they expressly say that they intend- 
ed to extirpate and extinguish uses. See 1 Itep. 125. 



NOTE 64. p. 40. (a). 

The words of 27 constitute a very vague description, 
of the statute 27 Hen. VIII. c. 10. which is the statute 
alluded to. A particular description of the statute was 
redundant inasmuch as tbeiproviso of which our author 
is speaking forms a part of the statute itself, and the 
words of the proviso are by authority of t^is act with« 
out saying more. 

NOTE 65. p. 42. (b). 

In some of the other editions the expression is to the 
use or pernancy-— in others, to the use or pemot&^-but 
ought to be to the use ox intent as is evident from tibe 
statute, which see. 

The case alluded to by Lord Bacon is the case touch' 
ing the execution of rents ; for which see page 52# 

NOTE 66. p. 42. (e). 

* For they are created to an use > certain*— -In th« 
editions preceding the last the expression, was,- < for they 
are equalled to an use certain,^ and if Lord Bacon in-* 
tended to h^ve made use of the word equdhd^ (which 

tht" 



t 



^JOttt AND EJfPLANAtlONS^, m 

llle editoir ^anpot think he did, it must hare been in thi$* 
sense-^that a corpotalion oiF itsdf knpli^s the haviog to 
its own use and behalf > as it is said in Gilbtrfs Lwai 
^ Uses llO) end so was equalled to an Use certain. 
In the last edition, the word atfu^ed was liubstiltttod 
for equalled : but the word enffffti is not, it is con^ 
ceived, calculated to gite to the jMissage that slgnifica* 
tio^ which l;he author intended it to bear j^. for a coi^« 
poration would be erfeofftd to an use cei^n if ei^^ffed 
to other uses than for its own benefit. Lord Bacon's 
meaning obviously is, however, What he has more 
clearly expressed in page jf7, Viis* that ^ theit capacitj/ 
ir to an use certain/ Or in the wordd of Gilbert in the 
work just now quoted (page 5,) that they can only tak^ 
for the ends of their creation: and the editor conceives^ 
that the word created is a more proper word for the 
purpose, of passing that meaning than either equalled 
or- er^eoffedk Whether a corporation can stand seised 
to an use or not, see i^ote 113 infra» 

NOTE 61. p. 4i. {/). 

. ' tn the other editions instead of feoffee eoer, it is said 
feoffor cmer ; but there is not any part of the statute 
which speaks of a feoffor over, . Lord Bacon is taking 
notice of the material words on the part of the feofiees^ 
and therefore it is presumed that he intended to express 
what indeed is apparent from the act itself — ^that.the 
statute when speaking csf the feoffee doth ev&r (in every 
instance) insist upon the word person. 

.NOTE 68. p* 4^. {g). 

. The wotd prevent was injudiciously substituted for 
pervert in the last edition. The meaning of the passage 
evidently is, that, as chatteU themselves, viz. the 

S substance 



rm NOTES AND E3CPLAMATK>N8w 

sabdtatioe or thing itself was transmissible^ by w3t^' 
tih^refore they' were not perretted by the use^ that'isf 
to say, nothing waa turned otit of the oltSnaiy coone 
by the devise of die use of them, so dial there Was nO 
iieibeisity fct mes of efaattek to be e^ecut^- by dio 
'statute in oideirio remit the c^o^mon law as to diem; 
and hencci die reasbu why s<nie wbid^ aji^pllcabie ta 
dbattel intemaitB were ndt niade caie 6( aa ^^ as Words* 
Applicable to firedlolds. 

NOTE 69. p^ 42. {*)• 

t ^T^refoei^ sttpposing that fatiff^ uses aie Emited to 
aiisQupod any giir^n event, if before die hi^ppening of 
thM; evwt the estate of the f^^es has been devest* 
fd aM twned to aright of e»lry,^ th^ statute wiU not 
eatey.diat right to the persons, intended to td&e d)Hs new 
Haiea,' so aa to enable them to. a:)tie;r and to Squire the 
poteessioir ; but the feoffee himself mu^ fir^t eiiter and 
^est before any thing will be executed by the statute : 
' And as uses are not executed when in contingaicy (f(Hr 
which see pages i2 and 43, and note 11,) this con- 
stttufes an' answer to. those Who eonteiiff, diat^ where 
^ estate^ hseve been sb deve^ed arid t^i^ned t6 a right, 
Iffie #e-^#y of fh'e'^ofiees is' i^l^ in 6iy case tiec^ssary 
in ord^ tO'^¥e eflScI «e^ fot^ Useii, arid to dieir being 
eateldufed' by cKe statute, but that ffie future cestui que 
«^ miy w^ eht^r' wilffiKiit sifty such previous entry 
by die feoflfeeS f 'for a* die itsttnile does Mt transfer 
rights, and as by ^easbh of tfie dissefsm dieve is liodiing 
left in the feoffe^ but a right of entry, it follows, thai 
when the event happens upon winch the new use was. 
'td'have arisen, theire is not ahyddngin Utit feoffee which 
iM s^f ute cai!! caii^y to the use> and eobseqtiBntly die 
statuie could not give tb^e mtended eesitui fue. use any 



NOTES ANP £XFLAN AT][0N8. IM 

x%fat to.f^nt^sr uQtil the feofibe h8» entemd aad ley^ted 
his ^$tBit», wbca iinmediateij that estata yrould ba 
executed to the use by the statute. See notes ftd^ 

NOTE 76. p. 42. (i). 

The word ni'/ was first inserted in the last edition , 
and was clearly necessary since Lord Bacon is observing 
that rights are excluded in other words not executed by 
the statute. 

NOTE 71- p. 42. [k). 

That is— so long as they continue contingent—when 
they come in esse the statute will execute them. The 
reason here given by Lord Bacon against the execution 
of uses whilst in contingency, viz. that the fee simple 
cannot be but to (in other words, that it cannot be to 
more than) the fee simjile of an use, would not be 
satisfactc^ in all cases; as for example^ where a 
feof&nent in fee is made to the iise of one for life with 
a contingent remainder to bis eldest son, the nonr 
execution of the use to the son, would not be accounted 
for by (he reason that the present uses draw away from 
the feoffees all the fee simple of tliQ land; because, itk 
the supposed case, the uses limited do not comprize 
the whole fee simple of the use. And in cases whe^e 
the present uses amount to the whde fee simple of the 
|ise, as if ip the above case^— -the remainder of the use 
had been li^^it^ over to one and his heirs af^er the 
contingent ireoiainder to the eldest soq— the reeson 
above given by liOrd Bacon, would not satisfieu^orily 
account for the non*execution of the contingent usej^ 
since had that use as well 9# the other uses been m esse^ 
^he fee simple of the feo£fees would have been convi 



tii ^/OTES AND EXPLANATIONS. 

petetit to supply the whole with the pdssessibii^ se«' 
e<»rding to the measure of the difFerent estates ia the 

A better ground and a sufficient one in every case is^ 
that, which was relied on by a great majority of the 
judges in Chudleigh*s case, that the statute only 
eSKecutes the possession to the use where the cestui que 
use is in esse in consequence of the words of the statute,' 
which say, that the estate and possession, &c. shall be 
in such person who hath the use, and that said eight of 
the judges cannot be till the person and the use also 
be in esse. See I Rep. 136. b. 

The other reason assigned by Lord Bacon, viz. that 
* the feoffee could only execute to, uses present' is a 
reason why the legislature might have declined to cause 
the execution of contingent uses, rather than a reason 
why the statute does not admit of being extended to 
them, 

NOTE 72. p, 43. (/). 

The word raised hath been in this edition substituted 
for seised.^Om author havmg said, that in con^ 
sequence of the word hereafter conveyances to use^ 
which had been m^de before, disturbed by disseisin at 
the time of, apd re-continu^d after, the statute, were 
brought in, obviously intends to impress his reader 
vith the opinion, thjit there is nothing to prevent their 
being so brought in; inasmuch as there are not other 
words coupled with the word hereafter similar to those 
which he states and which if used would have the effect 
of excluding them,—" For it is not said enfeoffed to 
an use hereafter—" Lord Bacop could not h^ve intend- 
ed to add the word seised for the passage would be 
withopt ijie^ning ; pj- if it could be said to carry any 

meaning 



NOTES AND EXPLANATIONS. tSS 

meaning at all, it must be tbifr-^-enfeoffed to uses to 
which the feoflfees had been already seised, add to 
which they should be again thereafter seised ; and them 
the words would have gone directly to bring in uses, 
the seisin to which had been^ disturbed before tho 
statute, and recontinued after, whereas he evidently 
intended to set down words, which if inserted in the 
statute would have prevented the word hereafter from 
extending to a subsequent seisin to such uses. Now 
had it been said enfeoffed to ah use hereafter raised^ 
then the statute could not have extended to convey^ 
ances to uses made before the statute ; but only to 
ihose uses which should be raised by conveyances made 
after the statute ; and Lord Bacon is supposing words 
which if used would have confined the statute to uses 
afterwards raised -^-For these reasons the editor con- 
ceives, that Lord Bacon wrote raised and not seised^ 



NOTE 13. p. 43. (w). 

In all the other editions it is said ' which is to be 
understood;' but it is apprehended, that our author's 
meaning was, that the word hereditament did not con- 
fine the operation of the statute to inheritances in esse; 
but that it applied also to other things whereof there, 
was no inheritance in being; aiid on that account tlic 
editor hath given a different turn to the signification 
of the passage, by an addition to it of the words not 
5o/e^.— Indeed the observation made by our author 
upon the case which he hath stated immediately after 
by way of example, proved, that the addition was 
necessary ; for after saying, that a rent charge granted 
de novo to an use is good he observes, " yet there is no 
^ohe^tance in being of this rent/* 

It 



194 NOTES AND EXFLANATIOM& 

It wEsdp^ed |>roper to say not sekljj/ beouBse if tm 
0tber word besidas tbe word not had bero lnierted» lb? 
ponage would have iroptiedy that tbe wwd Im^^ita* 
nent had no reference to inheritances iii ase; but to 
tiiose things merely, whereof there was no inheritance 
in esse. ; which wonld hare beai wrong, die n^eaaing 
being, that tbe woi4 berediiRii»ent.iBnot confined, toiin^ 
bmtances in esse^ but that it applies to otbei: tbu^oC 
fm inheritable nature as well, 

NOTE 74. p. 43. (»). 

The position that ^^ an use cannot be upen an yse^ 
bath in the introduction to a recent publication been 
made the sul^ect of much intemperate though impotent 
i^nsure^ntemperate it may well be considered, when 
with tbe view of ridiculing the profoundly learned 
character by whom it was advanced, such phsenrations 
are mad^ respecting it as that ^^ the declanttion waa 
made by some wise man in tbe plenitute of legal learn- 
ing,^' that 5^ this very wise declaration must have 
surprised every one who was not sufficiently learned to 
have lost his common sense, &c." and—- impotent will 
the censure be found, when the solid basis is examined 
upon which the position re^ts :«-~With the .view of 
pointing out the principle, why, an use which is limited 
upon an nse, cannot be executed by the statute, Ie(^ 
us suppose, that a feofiment in fee had been made 
before the statute to A. to the use of B^ to the use o^ 
or in trust for C. ; now A, was not seised to the use of 
C. but of B. ; whatever equitable claims C. had wer& 
on B. ; but B. had in law no heveditameni when there* 
fore the statute 27 Hen.^VIII. c, 10. came and executed 
the possession of hereditaments, and. of hereditament^. 
only (in the legal signification of that word) to the use,^ 

2 it 



NOTES AND EXPLANATIONS;' 13J 

it executed the Ude of B. because there wan a person 
that is A« seised of an hereditament to that Use ; but it 
could not execute the use of C. becaui^ to O/s use 
neitlier B. nor any other person was seised of sinjr 
hereditament, or indeed seised at all. By the same 
reason that an use upon an use might have been 
Executed, uses on chattels might be executed alsa^ 
but all such interests are excluded by the words of thef 
Ktatute^ 

Before Lord Bacon wrote^ the same doctrine had 
been held in TyrrePs case. Dyer 155. a. and some 
other cases* 

' It should however be observed, that the second use 
lalthough not executed by the statute will be enforced 
in equity as a trust. 

NOTE 75. p. 43. (o). 

So that it is immaterial by what words the use is 
Created, in order to its being executed by the statute. 
Any words, from which it may appear to be the inten^ 
eion of the parties to raise such an use, confidence or 
trust, as the statute sflludes to, will be sufficient. 

One gentleman hath said that the words confidence 
and tmst were meant to apply particularly to those 
trusts, which as he says (and as the editor will en- 
deavour to prdve in note 1 S5 says erroneously) were 
never looked upon as uses ; but the fact is, that the 
words usCf confidmccy and ti'tistf relate to one and the 
same thing, and were often employed as convertible 
terms in speaking of the use before the statute. Thuil 
Littleton [Ten. Sect, 463.) in treating of a feofihient 
to the use. of a man^s will, calls it, a feofiment upon 
confidence to perform the will of the feoffor ; and thus 
the feoffees to tises before the statute are in some caset 

called 



1S6 NOtES AND EXPLANATIONS. 

called feofiees to tiseSf and in other cases precisely 
similary they are sometimes c^i]!^^ feoffees upon con^ 
Jfiderdcef as in a case in the reign of Edward lY. See 
Fitz. Abr. tit. subpeena, pi. 9. j and sometimesyi?^^^ 
upon h'ust as in a case, firo. Abr. tit* f^off. al. useSf 
pi. 38. And therefore there is not the smallest reason 
to suppose, that the words confidence and trust refer to 
any thing which was not considered as the use at the 
time of the statute. See Note 125. 

NOTE 16- p. 43. {p). 

In the other editions the passage reads thus—" It 
excludeth all contingent uses which are not to bodied 
lively and natural" — and it must have been imperfect ; 
for such uses as Lord Bacon has instanced, viz. the 
making a bridge, &c. could not in any case whether 
contingent or present be executed by the statute, be^ 
cause the feoffor would not be seised to the use of any 
person ; and with respect to contingent uses— the pas- 
sage unaltered would have implied, that such uses 
limited to bodies lively and natural would not be ex- 
cluded ; whereas no contirigent uses, no matter in 
what manner or to what persons limited, can be execut- 
ed before they come in esse ; because the feoffees would 
not, pending the contingency, be seised to the use of 
any person^ as it was held in Chudleigh^s case ; see 
note 71. and as Lord Bacon himself hath asserted in 
the preceding page. These considerations led the 
editor to conclude, that Lord Bacon^s meaning wa» 
what the passage as altered imports. 

NOTE 77. p. 44. (s). 
The words referred to by Lord Bacon as being cc»n« 
mon to both the feoffee and cestui que use^ are the words 

bargain^ 



tm jT 



NbtiSS AND EXPLANATIONS. m 

inrgaii^, sale^ feoffment , fne, recovery ^ covenant, 
€0ntractf agreementj willy or otherwise^ m that part of 
tbe statute where it is speaking of the instrument b;^ 
which uses may be declared, as well as the conveyances 
by which they may be raised in the first place : And in 
saying that they " are words expressing the conveyance 
whereby the use ariseth/' Lord Bacon did not merely 
mean^ that they were expressive of the conveyances 
by which the use Was created or raised; but of those 
.conveyances also, by which cestui que use might have 
.been possessed of the use ; as for example^ whei*e a 
feoffment was made to A. to the use of B.'s will, and 
B. devised the use to C— Now, Lord Bacon did not 
mean merely the feoffment to A. by which C/s use was 
raised) but the will of B. by which the use arose to 
C. ; and this is clear from his saying a few lines below^ 
that some of the words were put in as relating not to 
, the raising but transfer of the use. And this shows 
also, that Lord Bacon did not mean that every word 
was alike common to the feoflfee and cestui que use* 
Many of them are common to both, but others are 
apjMTopriated to the declaration of the use^ 

NOTE 78. p. 44. (t). 

The word but in the second line below, plainly shoW^ 
edj that there must have been an omission of the word 
¥u^t in some preceding part of the passage ; and in the 
last edition, that word was so inserted, as to cause the 
passage to read thus-^^ for it is not expressed in the 
words before, bargain, sale, &c*' Nbw what does the 
pronoun iV represent? clearly the consideration in 
money or other matter valuable : but a con^deration 
in money or other matter valuable, is expressed in th^ 
words before bargain, sale, and contract, inasmuch as 

T it 



IS8 NOTES AND EXPLANATIONS. 

it is essential to the raising of an use by bargain^ sale, 
and contract y that there be a consideration in money or 
other matter valuable :— when therefore it was writtea 
in the last edition— it is vjot expressed, &c. th^ word 
Tfiot was misplaced. 

Lord Bacon's.meaning was, it is presumed, that some»^ 
bad inferred from the wbrds agreement y will, otherwise, 
that uses might be raised by agreement parol provided 
the consideration were— not of money or other matter 
valuable, for it (a va^luable consideration) is expressed 
in the words before bargain, sale, and contract; in 
other words, a valuable consideration would have 
made it a bargain and sale, and then, being a bargain 
and sale, it would hot have been good by parol on ac- 
count of the statute of enrolments, which requires bar- 
gains and sales to be in writing— «-but that uses might be 
raised by agreement parol, upon consideration of blood 
or kindred ; at least such was the opinion of some of the 
judges in Cnllard v. Callard, to whom it is very pro- 
bable that Lord Bacon alludes :-*^hey thought, that as 
uses might be raised by parol at the common law, and 
as the statute of enrolments only extended to bargains 
and sales where a valuable consideration was given^ 
that therefore uses might after the statute be well raised 
by agreement parol if upon the consideration of blood 
or marriage. See Cro. Eliz^ 344. and see also Paph^ 
4t. who has reported the case under the title of Colldrd 
V. Collard. 

NOTE 79. p. 44. (u). 

The words but thai uses already raised by those cori'* 

vejfancesy are not in the other editions, but they were 

by the editor deemed necessary to make sense of the 

passage, and appeared to him to be calculated tc^ te-^ 

2 pre» 



NOTES AND EXPLANATIONS. J» 

press the meaniog of the author, whose design obn-* 
ously was to give the reason why the words agrgement^ 
smd will were inserted in the statute : and he in the first 
place observes, that ** those words were put in, not in 
regard of uses raised by those conveyances'* (he could 
not have meant to add immediately after) ^' or without, 
or likewise by wiH," for tliat would imply that uses 
might be raised by parol or "will which he has himself 
denied. 

As our author sets out with observing, that the words 
were put in, there is every reason to suppose tha,t after 
putting it negatively and stating why they were not 
inserted, he then meant to inform us why they were ; 
and the words which conclude the sentence, viz. ' and 
there was a person seised to an use by force of that a* 
greement or will, namely to the ufie of the assignee^* 
lead us to suppose, that he had given that reason ; for the 
concluding words just now cited, were evidently used 
for the purpose of explaining how there would be a 
person seised to an use by force of an agreement or wiU 
although such use should not be raised by an agree* 
ment or will, but should be in the cestui que ttsis a^ 
assignee. 

Those concluding words appear to h^ve been in^ . 
serted by our author for the purpose of showing, that 
the statute is reconcileable to the interpretation which 
be has given pf it ; the act having .said, * where any 
person is seised, &c. to the use, &c, by reason of any 
feoffment, &c. agreement^ will^ &c/ he here observes, 
that there will be a person seised to. the use of another 
by force of an agree^i^t, will* &c, although no Use 
be raised by the will pr i^greement ; inaspoiuch as that 
agreement or will may opentte to tn^flfer the use, and 
in that point of view there would be a person seised 
to th^ i|se of miother by force of that agreement or will, 

T 2 thj^i 



140 KOTES AND EXPLANATIONS. 

that other being the assignee of the use whose title it 
by force of that will or agreement.— To sum up th^ 
whole in a few words— it was evidently the opinion of 
our author^ that the words agreement and will are not 
spoken of in the statute as instruments whereby the 
use might be raised in the first place, but that they are 
only applicable to the declaration of the use. 

NOTE 80. p. 44. (v). 

It is held by modem writers, that an indirect devise 
of lands by a disposition of the use by will, was abso* 
lutely lost after the statute 27 Hen. VIII. c. 10, be- 
cause, as they say, the use when the possession was 
annexed to it became merged in the land ; and indeed 
our author himself in another place, (see Bactfris Laxm 
Tracts, 154,) observes, that by this statute the power 
of disposing land by will, was clearly taken away^ 
The editor must however take the liberty of question- 
ing the accuracy of this doctrine ; but let it at the 
same time be understood, that he does so with all due 
deference : he admits then, that if A. made a feofiinent 
to the use of himself, or to the use of B. that A. or 3^ 
could not after^ the statute of uses and before that of 
"wills have devised the use ; because the possession 
having been conjoined to it, such a devise would have 
amounted to a devise of the land itself ; but he at the 
same time contends, that lands might notwithstanding 
have been indirectly devised after the statute, by mak- ' 
ing the will, not a deviss-^f an use as of a thing then 
vested in the testator., but a limitation and appointment 
of an use under a preceding feoffment ; as if a feofR 
ment had been made to the use of such persons for such 
estates, &c, as the feoffor should limit and appcrint 
by his will— now, although the use would result to the 
feoffor until appointment, and the possession fe^ aiK 



NOTES AND EXPLANATIONS. 141 

Hexed to the use ; yet the use raised by the feoffment, 
would not be merged in the land, but would be capable 
of veiling in the appointee under the will ; for as Man* 
wood said, nn Brenfs case (2 Leo. 16.) the property 
and quality of the use a$ abstracted from the possession 
shall not be drowned in the possession : when the feoffor 
limits the use by his will, and points out the person 
who is to take it, the will does not operate as a devise 
of an use tl^en vested in the testator, and consequently 
not as a devise of the land, but merely as a decbratioo 
of the use of the feofiinent, and as a designation of 
the person who is to take that use ; whereas in the other 
«ase, it is a devise of the very thing which the testator 
has in him, and the devisee would take it if at all by 
the will. In this point of view, the distinction men* 
tionedin Co,Litt. lll.b. 112. a. between a feoffment 
to the use of a man*s will, and a feoffment to the use 
of such persons as he shall appoint by his last will may 
be seen to be important. In the one case, there are 
no words of disposition to other persons, and the feoSbr 
has the use to himself and his heirs absolutely, and the 
statute executes the possession to his use absolutely^ 
and his devise of the use would have been a devise of 
the land also, as being annexed to that use, and there- 
fore void lands not being then devfseable. In the other, 
case, the feoffment doth contain words of disposition, 
to other persons, and the feoffor has the use not abso- 
lutely, but in a- qualified manner only, determinable 
upon the appointment to take it of ^the persons alluded 
to in the feoffment, and therefore the statute executes 
the possession, tiot absolutely, but for a limited time 
only, viz. until a designation of those persons ; when 
that designation is made,^ the person so appointed doth 
DOt take* irom the testator the use as a. thing which was 

in 



L 



J*2 NOTES AND EXPLANATIONS. 

in hink as owner, for that use ceased upon the ap^. 
pointment ; but he takes a new use under the fec^meiit 
in the' character of a person therein referred to, and to 
whom a future use was limited, and in the same man- 
ner as if the feoffment had been immediately to his use 
in the first place, for as i.t was said in Moore j 517, in 
treating of the above^ distinction, ' the quality of aQ 
future uses is, that although they take their Gonfttnie* 
tion by a future act, yet their inception and perfection 
proceeds from the first livery, and they, are regarded 
as uses on the first livery '? in the laat-mentioned case 
the office of the will is merely to nominate. See 
MooT€y 316, 517. 6 Rep, 18. Sir WUliam Jones, 7. 9. 
«nd Gilberfs Lwtio of Uses^ 35, 36. 
. That an indirect mode of .devising the land by a dis- 
position of the use by will, was not absolutely lost 
after the statute of uses, may it is conceived be argued 
Irom authority, for there is a case in Brooke^ from which 
it may be inferred, as the editor thinks, that an use 
might be declared by will notwithstanding the statute 
of uses ; for it was there made a questicm in what cases 
an use might be changed ? and it was held, that if a 
man declared his use in this manner^ ' I will that my 
feoffees shall be seised to such an use,' there he may 
cbknge the use beAuse by will. Now, as this case 
'was decided y between the statute of uses, and ihose 
statutes which made lands devisable, viz. in the 3Q 
Hen. VIII. it seems a fair inference, that the statute 
of uses had not prevented a disposition of the use by 
will. See Bro. Abr. feoff, al. tises, pi. 47. - 

Again in Sir Eflward Clere^s case mentioned above^ 
one Harwood seised of three acres of land held in 
icapite, made a feofTfnent of two to the use of his wifa 
for her jointure, and afterwards made a fepffinent of 

• th^ 



i . 



NOTES AND EXPLANATIONS. 145 

the third acre to the use of such person, &c. for such 
-estate, &c. as he should limit and appoint by bis will^ 
' and devised the said third acre to one in fee ; and 
whether this devise was good for all the said third acre 
or not, or for two parts of it, or void for the whole^ 
was the question ^ And it was decided, that Harwood 
had no power (having before disposed of two out of 
the three acres) to devise any part df the third acre as 
owner of the land, but that the devise enured as a !!•» 
mitation of the use : now, as the statutes of 32 and 34 
Hen. VIII. gave a power of devisihg only two parts 
in three of landsheld in capite, or by knight's service^ 
of consequence one third of land so held, remained the 
same as before those statutes passed, until the restrict 
tion as to that third was removed in consequence of 
the statute of the 12 Car. IT. having converted knights 
service into socage ; therefore, as Clere*s case -was de- 
termmed before that rest|riction was removed^ by the 
same reason that tbeMevise of the third acre in that 
case enured as a limitation of the use, would a limita* 
tion of the use of the whole land have been good after 
the statute, of 27 Hen. YIII. c. 10. and before the statute 
of devises in the 32 and 34 of the same reign. 

So in the case cfMj/tton and Lulmich^ (Sir William 
%/bwej, '7..9.) where, there was a conveyance of the 
manor of Shipton held in capite to the use of Lutwich 
in tail, with remainder to the use of such person, &c. 
as he should declare by his last will in writing, it was 
adjudged, that the will was good as a limitation of the 
sWhole use of the first conveyance, and was not a Jevise 
of two parts of the land ; and as the case of Mytttm 
and iMlaioich ^as determined in the 18 of James. L 
tod therefore before the restriction as to one third of 

land^ 



141. NOTES AND EXPLANATIONS. 

lands held under that tenure 'was removed, it establisbeitf 
the soundness of the conclusion above drawn from the 
case or Sir Edward Clere. 

With respect to the distinction between a feoffment 
to the use of such person^ &c. as one shall appoint by 
his last willy and a feoffment to the usd of one's last 
willy the editor has further to obsei-ve, that it is only 
by admitting the distinction that the cases in the books 
can be reconciled; for instance, the above case oi 
Mytton and Lutwich would be at variance with that of 
Batty V. Trevilliony Moore^ 280. wherein it was 
adjudged, that when a feoffment is made to per^ 
form one's will, or to the use of one's last .willy the 
land passeth by the will and not by the feoffment ; and 
then only two parts pass ; but there is nothing contra- 
dictory iri those determinationa, if the above distinction 
be a substantial one. 

* 

NOTE 81. p. 44. (w). 

In the other editions the punctuation, &c. is in thw 
part different, and the meaning misrepresented or at 
least rendered very obscure in consequence. It ther^ 
stands in this manner— ''. namely, to the use of the 
assignee ; and for the word, otherwise, it should by 
the generality of the word, include a disseisin to an 
use. But the whole scope of the statute crosseth that 
which was to execute such uses, as were confidences 
and trusts," &c. Now, by making the sentence com^ 
men<;e at the word but, it carried the meaning, that 
the whole scope of the statute crosseth the execution 
of such uses as were confidences and trusts ; whereas 
the signification was intended by Lord Bacon to have 
been directly the reverse, viz. that the whole scope of 

the 



K0TE8 AN» EJJPLANATlONSi m 

the statute crosseth that, ( viz^ a disseisin to an use) which 
waS| (viz. the wfa6le scope o^ the statute was) to, ex« 
iecute such uses ^ wefe confidences aiid tirusts which 
{viz. a confidence and trust) could not be in case of 
disseisin : and the teason, why a confidence and trust 
tould not be in the case of disseisin, is, that if the 
disseisor enteired to the use of another person by the com-- 
mand of such other person, then. Upon such entry the 
land or possession itself, and not fhe use as distinct 
from the possession, was vested in duch other person to 
whose use the entry was made; so that there could not 
be^ny use. And, on the other hand, if the disseisin 
were of the disseisor's own head, that is to say, without 
the agreement of the person to whose use he might 
enter, then there could not be any trust because no 
privity ; and their being no trust, the statute could not 
execute the possession, since it only operates where 
there is a confidence and trusty for without a confidence 
dud trust an use could not be. See note 143. 

NOTE 82. p. 45. (x). . 

In the other editions, instead of the wdrds or antf 
use, it is said or otherwise. -^The necessity of the alte* 
ration was obvious, since Lord Bacon was stating the 
words of the statute, which are < ot antf tise;, confi'-* 
dence, or trust, in remainder or ret^terv' 

NOTJE 83; p. 45. (y), 

I'hat is td say, that estates are either estates icNf life^ 
or for y^urs, &c. according to the times for which 
they are to continue ; as where the time of continuance 
k lilnited to the period of a life, there it is an estate for 
life ; wfa^re for a certain number of years, there an 
estate for years. 

U NOTE 



lie NOTES AND EXPLANATIONS. 

NOTE 84. p. 46. (a). 

Brudnell's opinion was, that by the feofFment of 
cestui que use under the, statute 1 Ric. III. all the in^ 
termediate acts of «the feoffees to uses would be avoid<r 
ed, for that the entry of the cestui que use should have 
relation to the time of the first feof&nent; butaccord-* 
ing to Brooke, all the other justices thought otherwise* 
iSee the Tear Book^ 14 Hen. VIIL 4. 10. and Bro. Jbr. 
/eqf. al. uses, pi. ip. 

NOTE 85. p. 46. (B). 

It \& feoffor in the other editions, but should be 
feoffee ; because the case itself makes it apparent that 
the person spoken of is Xh^ feoffee to uses. See the re- 
ferences in the last note. 

NOTE B6. p. 46. (c). 

The vrarA feoffor is also in this place, and in the 
second line below, erroneously inserted For feoffee in 
the other editions ; and it may be proper to obsenre, 
that the person here meant, is not the first feoffee to 
uses, but the person who takes under the feoffment of 
the cestui que use. " • 

NOTE 87. p. 46. (rf)* 

It is difficult to imagine, how a person can be put 
into actual possession by the bare operation of an act 
of parliament— Gilbert in his Law of Uses, page 230., 
Dbserves*, that it is impossible an act of parliament 
shouki give any more than a civil seisin, and that it 
cannot give ^ natural one : and Lord Coke (Co^Liti. 
$66* b.) says, ' if a man doth bargain and sell land by 
deed, fndented and inrolled, the freehold in lam dotb 
p^ presently/ and a freehold in law he infonns us 



NOTES AND EXPLANATIONS, i47 

it the civil seisin, and the freehold in deed the natural 
seisin ; so that it was his opinion also, thiat the statute 
gaye only a civil seisin. 

That the statute does not give to cestui fue use * 
seisin in fact appears from the circumstance of his 
being unable to bring trespass before he gains the 
actual possession by an actual entry. See 2 LilL Abr. 
335. and Gilberfs Law of Uses, ubi supra. 

As the validity of the conveyance by a bargain and 
sale for years under the statute and release which i» 
now become the most general assurance, was formerly 
disputed, and particularly by that very distinguished 
lawyer Mr. Noy, who was attorney general to Charles 
the First, and whose disapprobation of the conveyance 
appears to have been so decided, that he has not in his 
celebrated maxims even mentioned it, although he has 
treated of every other kind of assurance ; and as the 
books which intimate that doubts have es;isted respect^- 
ingtthe efficacy of the conveyance without an actual 
entry by the bargainee for a year, do not inform the 
reader upon what basis they rested, or why an actual 
entry was not dispensed with by the statute— the editor 
trusts that he shall be excused in endeavouring to prove 
that substantial objections might have been urged 
against it.-— Where a man was in possession as tenant 
for years or at will, he was at common law enabled 
to take the freehold and inheritance of his lessor by, 
way of release, for it was considered vain to make an 
estate by livery of seisin to one who had already pos* 
session, of the same land by the lease of the releasor* 
Liti. sect. 460. but without an actual possession a 
release was not good to increase the estate of the lessee, 
for before possession in some other person there could 
be no revf^rsion in the lessor ; and where the lessor had 

U 2 not 



IM NOTES AND EXPLANATIONS. 

I 

not a reyersioQ but the possession, of coarse livery of 
seisin was indispmisable; if therefore a lease for years 
at common law had been made and before the lessee was 
in possession, (and which could only be by entry) the 
lessor had released to him, such rdease would not have 
been good to enlarge his estate. See Co, Lift. 270. a« 
46. b.~Wben the statute of uses came and said that 

* the cestui qtie use should be in possession of and in 
such estate as he had in the use/ it was thought by 
aome, that nothing more was cequisite than to raise an 
use for a year to the intended releasee, who would 
then by the operation of the statute be as much in 
possession as the lessee for years under a conmnon law 
lease was after entry, and consequently equally capable 
ef taking a release, and under that impression they 
framed die conveyance by a bargain and sale and 
^release. Then, the point to be considered appears to 
be, whether the statute does give the bargainee for a 
year, the same pos&ession without entry as the lessee 
at common law had after entry, or merely that kind of 
interest which the lessee at common law had betweei)# 
the time of the lease made and that of actual entry ? 
And it is contended that such statutes as the 2T 
Hen. VIIL c. 10. are not to be intended as taking 
away any incidents, ceremony, or circumstance, which 
the common law requires, nor to do ^ny thing con- 
trary to the common law ; and consequently, that when 
the statute executes the possession to an use for years, 
the cestui que use is placed in the same situation with 
the lessee at common law before entry, and that to the 
enurement of a release by way of enlargement of estate, 
an actual entry is as much necessary in the one case by 
the bargainee, as it is by the lessee at common law, in 

• tt§ ptter, Tb\i? in JPucknulP^ CWe, 9 Jtep. 36, a. ii 

is 



NOTES AND EXPLANATIONS. U9 

is said, * although the purview of the act 21 Hen. VIIL 
c. .19. be general, that the lord may avow, &c. as in 
lands and tenements within his fee and seignory, aU 
leging the same lands to be holden of him without 
naming any person certain or upon any person certain, 
yet all necessary incidents zxe intended, and therefore 
the avowant ought to allege seisin by some hands.' 
TI>e editor was induced to notice the case of the 
avowry for the sole purpose of evincing, that it may 
be regarded as a principle, and not confined to a single 
case, that such statutes as the statute of 27 Hen. VIII. 
€. 10. do not take away any incidents, ceremonies, or 
circumstances of estate ; for it was not necessary for 
him ' to reason by analogy from that case to the case 
of a bargain and sale under the statute, because tliere 
are other cases in the books wherein the principle con- 
tended for has been acknowledged with an express 
reference to the statute of uses itself; as in a case in 
the 28 Hen. VIII. (and from its having been decided in 
the very next yesu* after the statute, we are enabled the 
better to ascertain what kind of seisin the statute was 
intended to give ;) it was agreed, that where the statute 
27 Hen. VIII. c. 10. — of uses, enacts, that the actual 
possession shall be adjudged according to the use, yet 
it ought to have the circumstance which is requisite^ 
by thecommon law, 567/.— actual entry in fact. See 
Dyer 28. a. pi. 182. — In Mallory\s case also, 5 Rep. 
113. the same doctrine was resolved by the whole court, 
and the above observation in Dyer with respect to 
the statute of uses, was quoted as an example for that 
doctrine ; so that it is clear from those cases, that the 
statute ought not to have been construed to give a 
iseisin in fact, as Lord Bacon said, nor does it give 
^Qcb a possession to a bargainee for years, as upon 

strict 



150 NOTES AND EXPLANATIONS^ 

strict legal principles a release will work upon witliout' 
an actual entry in fact by the bargainee ; and h^ce 
also it appears, that there was formerly abundant reason 
to doubt the validity of the ponveyance. However, 
by the cases of Mytton and Lutwkhy 18 James L Sir 
William J ones ^ 7, 9, of Isehanij v. Morrice^ in the 4 
Cba. I. Cro. Car* 109. and Barker against Keat, in the 
29 Gha. II. 1 Mod. 262. 2 Mod. 249. all decided aft^ 
our author wrote, the conveyance was judicially sane* 
tioned ; and indeed if it had never received the sanction 
pf the courts, its eflScacy would not be permitted to be 
questioned at this day, when perhaps upon the validity 
of the conveyance, the title .to every estate in the king<« 
dom depends. 

NOTE 88. p. 47. (e). 

In the other editions the expression is ^for that' hut 
it is conceived, that it should be ^ so that' for Bacon 
does not appear to be assigning a reason why the fore- 
going words were made use of in the statute ; but to be 
drawing a conclusion from those words, viz. that the 
matter and substance of the estate which the cestui 
que use is to have under the statute, is, the estate of 
the feoffee. 

NOTE 89. p. 47. (/). 

Periam and WaJmsky, in ChudleigKs case were of 
this opinion : They thought that nothing remained in 
the feoffees, but that their whole estate was out of 
them by force of the act, and that until the future 
use should come in esse^ the estate which was to be 
executed to it should be in the preservation of the law. 
See 1 Rep. 132, 133, 134. but Popham and Anderson 
chief justices, and six of the other justices and barons 
held the contrary ; and they said; (what indeed constitutes 

4 an 



NOTES AND EXPLANATIONS* 151 

an answer to the observation of our author^ as to the 
statutes taking more from the feoffee, than it executes 
presently,) that those who had argued on the othei* 
side, had taken but the first part of the sentence, that 
is to say, that the estate shall be out of the feoffees ^ but 
that they had forgot the latter part of the sentence, 
sciL that the estate shall he in such person Mo hath 
the use ; and that, said the eight judges, cannot be, 
till the person and the use also be in esse : and they 
further said, that by the clause it also appears, that 
lio estate of the feoffees shall be transferred, in abey- 
ance out of the feoffees and vested in nobody, or ba 
transferred to a possibility of an use which hath not 
any being, which would be against reason, and against 
the lett^ and meaning of the act, for the words are 
and shall ^' be adjudged in him or them that shall have 
such use ;" ergo (said the eight judges) the estate oF 
the feoffees shall not be in abeyance, 1 Rep. 136. b. 
See the next note. 

NOTE 90. p. 47. [g). 

Notwithstan^ling Lord Bacon considered the doctrine 
of a scintilla juris but as a conceit, and the feoffees 
estate to be extinct, it has been established by the 
decision in Chvdleigh*s case, and the resolutions of 
RoUe and the other justices of the King's Bench in the 
case of Wegg and Fillers ^ that where there are cpn« 
tingent or future uses limited, the estate of the feoffees 
is not utterly out of them ; but, that they still have a 
possibility to serve the future use when it comes in 
r;y^e;— that when the future use comes in esse they 
will have sufficient estate and seisin to serve the future 
use, (if the possession be not disturbed by disseisin or 
other means J and,<>— that the feoffees have a possibility 



152 NOTES AND E5n?LANATI0N& 

of entry or scintilla juris, as Dyer (see Dyer 340. b.) 
caUed it, remaining in them ; and in case of such dis- 
turbance of the possession and its not being recon- 
tinued, that they will have a povirer to enter and revive 
the contingent uses so that they may be executed by 
the statute of uses. (See 1 Jlep, 129, 136. b. 137. a. 
and 2 2iQlL 797. pi. 14, and 16.) And further, that 
where the revival of the uses depends upon the entry 
of the feoffees, there, if the feoifees release all there 
tight in the land or make feoffment of the land or bar 
their entry by any other way, the contingent use never 
could be 'executed by the statute ; but must for ever 
fail. See 1 Rep. 137. a. and 2 Boll. 797. pi. 16. and. 
see also Dyer 340. a. as to the feoffees being barred 
of their entry by their feoffments by the opinions of 
Dyer, Man wood, and Mounson, against Harper. 

It should however be observed, that the necessity of 
an entry by the feoffees, where there has been a dis- 
seisin hath been questioned by the late Mr. Fearne, in 
his truly excellent work on contingent remainders; 
but upon grounds which in the editor's opinion, are 
no^ calculated to shake that doctrine ; for it seems to 
have been entirely out of that gentleman's view, that 
the statute of uses has not any operation, imless those 
four things concur at one and the same time, that is 
to say,— 1. Seisin in the feoffees.— 2. Cestui que use in 
rerum natura.'^Z. An 'use in esse, and— 4. that the 
estate of the feoffees may vest in cestui que use, 1 Rep, 
126. But to understand the subject the better, let us 
suppose, that a feoffment is made to A. and B. to the 
use of C. for life, remainder to the use of the eldest 
son of C. in tail, he having no son at the time, re- 
mainder to the use of D. in -fee ; and then, that C. the 
tenant for life is^ disseised, afterwards has a son bom^ 

and 



NOTES AND EXPLANATIONS. I5S 

knd then dies without having revested the i^eisin: 
Mn Fearne contends^ that in such a case the contingent 
remainder in use to the son of C. will take effect and 
be executed by the statute without any previous entry 
by A. and B. the feofiees to uses ; but it admits of 
proof, that the contingent use without such an entry 
never can be executed by the statute, because the 
statute only works where (in its own words] any person 
is seised to the use of another person : Now, before the 
birth of the son Qf C. it is perfectly clear, that the 
use to that son could not be executed, for the feoffees 
were not seised to the use of that son, there being no 
such person in existence ; at that time, the one of the 
four requisites which was wanting, was, a cestui que 
use mjrerum natura ; and, after the birth of the son 
it is equally clear, that the use to that son could not be 
executed, because the seisin which was to have re-> 
verted to the feoflfees, (see note 103.) had been pre- 
viously devested, and the feoffee had consequently 
never been seised to that use ; so that when the intend- 
ed cestui que use was in rerum Tiatura, another re- 
quisite to the operation of the statute was wandng, 
viz. seisin in the feoffees ; and that seisin must neces^ 
«arily continue to be wanting until it is revested by 
entry* 

There is no doubt but that the right of entry in C 
was sufficient to support the contingent use to his son^ 
so as to preserve its capacity of taking effect, provided 
there sdiould afterwards be a seisin to that use ; the case 
of Wegg and Fillers above quoted decided that point. 
The only question is, if the contingent use will be 
executed by the statute without such a seisin? In 
support of the affirmative of it, Mr. Fearne {Fearm^s 
Cmt, Hem* 445. 4 ed.) a$ks, does not the statute enact, 

X tha« 



IH NOTES AND EXPLANATIC»IS- 

that ^^ wberd anj person* &c. is seised to the use of 
others, the cesiui gue use shall be deemed in lawful 
^Qmn^ &e. to aJi inteats, constnictiom^ acd purposes 
m tbe law?" And he ashy also ^' if the words /^ ail 
mienU% comtruciiomy and purposes in the laxo. must, 
apt be refeirred to^ the legal propertifiB, qualities, and 
capaeities of e^MiateSi of. theJike degree: or measure at 
coQsifiaoB law ? If so^ (be arguses) as it is ono o£ the 
leg^l qualities of. an estale at common law of the 
4egree or measure d[ freehold^ to support a Gontingent 
remainder when turjfted to a right of entry, so wiik a 
preceding .vestied use support acooftingent use ; and a» 
one of the^ quidities of a contingent reauunder at 
common law,. is> a, capacity of being su]^€Hrted fay a 
right of entry, so will a rigbb of entry alone without 
any entry by. the £»>£S8es preserre the capacity of the 
contingent mse to rart; and tatoe effect,"-** It i& admitted 
by the editor in aaaswer to Mf-Feame, that uses wfaeiir 
executed .bys the. statute,, aetjaite the legal, qualities of 
estates of the liiie.dogiee tx. nieas«0e:ateo]nB:Km.iafwr; 
and consequently^ that, a right cf ^itry in a person 
baTittg a preceding vested use of thedegree or measure 
of freeholds wdll support an use limited in contingency^ 
so as to preserve its capacity of taking e&ct if theiv 
should afterwards be a seisin to that use : But it is at 
tile. $ame time denied, that the contingent use can Vest 
and take effejCt without an entry by the feo£fees^. because 
the. statute hath never executed the'poasessioQr to that 
use> for Vant of a seisin to it in the feofiees, and a cesim 
que use in rerum mUwra occurring at the same time ; 
and as the statute hathiiever executed tiie possession t6 
that use, the contingent use^has ns^er been in a sitna^ 
tion to h^ve the^leg^l qualkim,. &c. of a contingent 
remainder at: cpau»OitJb\!;^i &r. it is 4i;i^ where the 

statute 



NOTES AND EXPLANATIOM* ' 1^ 

statute haik carried the legal estate to'tbe ise, dilit to 
use can ha?e those l^al qualities^ lic» If the son of 
C. had been born before the disseisin, the use to that 
son would have been imoiediately executed ; and then» 
upon the death of C. the son might have entered without 
any previous entry by the feoffees, in the same manner 
as a person to whom a contingent remainder at common 
law is given, may do ; and the sale reason, why, a 
person having a contingent use cannot enter also, is, 
that as the disseisin in the case above supposed hap- 
pened before the birth of the son, the statute has not-^. 
for want of a seisin in the feofFees--**been s^le to execute 
the possession tp that use, so as to clothe it with the 
legal qusdities of an estate at common law. 

The doctrine, which Mr* Fearne opposed, was firmly 
established by the decision in Chtidleigh^s'ceise, as the 
extracts from that case given in the former part of this 
note prove ;-«4x)w then came it to pass, that Mr, Fearne 
in questioning tlie soundness of that doctrine, con* 
fined his strictures to the extrajudicial resolutions of 
the judges, in the case of fVegg and Fillers^ when 
there lay in his path a solemn adjudication in favour of 
it? The very ground of the conclusion of eight of the 
judges in Chudleigk^s case against the contingent use, 
was, that cmi account of the disseisin an entry by the 
feoffees was necessary, in order to give effect to that 
use ; and that the feoffees having barred themselves of 
their entry in that <»se, the contingent use could never 
take eflfect. This appears from Coke's report of the 
case, who, aft«f stating the resolutions of the judges 
as cited above, sums up in the following words, ** so 
all the justices and barons of the exchequer, except 
Periam, Walmsley, and Gawdy, did conclude, that 
forasmuch as the statute 27 Hen. VHI. doth not extend 

X 2 bi»t 



156 NOTES AND tXPLANATIONS. 

but to uses in esse^ am} to perscms in esse^ and not to 
any uses which depend only in possibility, for tihat 
reason the contingent uses in the case a^ bar remain so 
long as they depend in possibility, only at the common 
law; and by consequence, they might be destroyed or 
discontinued befoi^e they came in esse, by all such 
means as uses might have been discontinued or destroy- 
ed by the common law," 1 JRep, 137. b. Now, at the 
common law uses were discontinued where the seisin 
to the use was devested, and they could only be re-r 
vived by the entry of the feoffees to regain that seisin ; 
and if the feoffees barred themselves of their entry 
the uses were destroyed, because it would be impos* 
sible that they should ever be revived. See 1 Ilep^ 
121, 122, and 126. and the authorities there referred to. 
It is evident, that Mr. Fearne wholly misapprehend^ 
ed the principle of the decision in Chudleigh's case ; 
for he attributes that decision to— the determination in 
law of the particular estate by forfeiture, before the 
birth of the son towhom the contingent use was limited ; 
whereas so far from deciding that point were the judges, 
that they were only agreed that the determination in 
FACT of the particular estate by the death of the par- 
ticular tenant, before the birth of the son, would have 
destroyed the contingent use, 1 Hep. 137. b. 138. a.; 
but with respect to the determination in law of th^ 
particular estate before the birth of a son, only four of 
the judges expressed themselves of opinion, that a con- 
tingent use would be destroyed by such a det^minatiofi^ 
of the particular estate, 1 Rep. 135. b.: And only one 
of the four was governed by that opinion in his judg- 
ment, and the seven other judges instead of being o^ 
that opinion, were (according to PoUexfen, Poll^ SS^n 
and indeed from reasonable presumption furnished by. 

the 



NOTES AND EXPLANATIONS. 157 

the reports of the case) rather of the contrary opinion. 
And it is not to be wondered at, that seven of the . 
judges did not accede to the opinions of the other 
four upon the last mentioned point, for when Chud^' 
leigh*s case was argued, it was not taken for law, that 
the determination in law of the particular estate by 
forfeiture, would be a destruction of a contingent re- 
mainder even at common law, nor was it settled until 
a few years after in Archer^s case; for although 
Archer^ s case is reported by Coke before Chudleigh^s^ 
yet the latter was first adjudged. See Poll. 389, 390. 
But whatever may have been the sentiments of the 
judges upon the destruction of a contingent use by 
the determination in law of the particular estate, certain 
it is, that it was not adjudged as Mr. Fearne thought, 
nor made a point in the case ; for Coke distinctly tells 
us, that, ** the question in the case was no other, but 
whether the contingent uses before their existence by 
the said feoffment of the feoffees, were destroyed and 
subverted, so that they should never arise out of the 
estate of the feoffees after the birth of the issues.'* See 
1 Rep. 121. 

NOTE 91. p. 48. (z). 

In the other editions it is said, ^ so there it is endow- 
ed,' but should be * so hercy &c.' as altered, for our 
author is speaking of the effect which the words now 
under his consideration have, as distinguished from the 
effect of the first clause already considered. 

NOTE 92 p. 49. {k). 

The ivord second is not in the other editions ; but 
the editor conceived that it wa^ called for, because it 
was evidently Lord Bacon's intention to observe, that 
the second case in the statute, viz. of joint feoffees, 

of 



158 NOTES -AND EXPLANATIO^JS. 

(^ which he was treating, was not absolutely necessaiy ; 
since die first case would bai^e comprehended^what die 
second case particularly provided for.— *Tfae observation 
* so that it is rather an explanation than an addition/ 
demonstrates, that the second case was meant, and that 
the word it refers to that case, for tlie sectmd case only 
and not the first can be an explanation of, rather than 
an addition to, the first. There would not have been 
any room for a doubt, that the first case of the statute 
extended to that of co^feoffees, if the statute had not 
said where any person is seised to the use of any other 
person. 

NOTE 93. p. 49. (/). 

In. the other editipns it is merely said enfeofikd to the 
use of himself; but the addition of the words and 
another was' necessary, for Lord BacOn is endeavouring 
to show, that the law upon the first case would have 
been taken as the second Case provided for \ and it is 
with that view, that he supposes the second case of 
co-feofFees to the use of one of them to be turned the 
other way, viz. one person to be seised to the use of 
himself and another ; for, if the first dause of the act 
applies to th^ case of one seised to the use of himself 
and another, for which case no separate provision i^ 
made, it would be capable also of extending to the 
case of co*feoffees to the use of one of them which is 
expressly provided for. ' If however the statute would 
tiot extend ta the case of co-feofFees4:o the use of one 
of them, without its being separately provided^for, then 
the case ^ converso would be excluded by the act, no 
separate provision being roa^de for it ; but as the case € 
converso is according to our author, included in the first 
clause, so would the first clause have applied to that 

which^ 



MOTEat AND EICPLANATIONSi 15* 

wkicb is expressly provided for; add therefore no 
separate provision for it was necessary : and the only 
reason why a separate provision was made for it, was^ 
as we are informed a few lines below, on account of 
its being a general case*in the realm. 

NOTE 94. p. 49. (w). 

There is a want of perspicuity in this part which 
ipenders it necessary to be observed, that Lord Bacon 
alludes to the former and latter case or clause of the 
statute, viz. to the first or general case and the second 
case of joint feoffees to the use of one of thenx i^ and 
not to th^ former and latter case as stated for argu- 
ment. 

The object aimed at, is, to prove that the law would 
have been taken upon the general case ^ was exinressly 
provided for by the case of joint feofiees, and with that 
View it is that Lord Bacon observes, that if one were 
enfeoffed to the use of himself and anojther-«>-a case for 
which no separate provision is made by the statute—* 
tbey (the celles qtie tise) shall in or under the former 
case or clause of the statute be seised jointly, and that 
where there are co-feoffees to the use of one of them 
cestui que use shall in or under the second case or clause 
of the statute be seised solely. Now, if the first case ov 
clause of the statute applies to the converse of that 
case which is expressly provided for by the second case 
or clause of the statute, by the same reason would the 
first case or clause of the statute £(pply to the very' 
case itself, which is so expressly provided for; and 
therefore the separate provision made by that second 
case or clause of the statute unnecessary ; for the word 
other (used in that part of the first case or clause of tho 
statute, wher-e ^ is said to the use x>f other person x^ 

j)ersons) 



160 KOTES AND EXPLANATIONS. 

persons) would not be more in the way of the case 6f 
joint feoffees to the use of one of them, than, of the 
case of one seised to the use of himself and another ; 
and that word is to be qualified (Lord Bacon observes) 
so as not to be in the way of eithisr case. 

As the second case or clause of the statute relates 
to the case of joint feoffees, seised to the use, not. only 
of oncy but of some of them, it may be proper to 
observe, that Lord Bacon is in this place considering^ 
it j as if it applied merely to the case of many seised to 
the use of one of them.— This is evident from his say- 
ing a few lines below, that this case of co-feoffees to 
the use of one of them was a general case in the realm.* 

NOTE 95. p. 49. (n). 

' They were loth to bring in this case by inserting tiii^ 
word onfy into the iirst case' — This expressioa seems 
to imply, that if in the first clause the word dni^ had 
been inserted tlie case of one seised to the use of him- 
self and another to which Lord Bacon alludes, woidd 
have been brought in or included in the fii*st case ; but 
that they had an objection to have the first case extend 
to it. That however could not possibly have been 
Lord Bacon's meaning ; for the first case or clause of 
the statute, if the words bnh/ had been inserted in it^ 
would not have provided for the case where one is seised 
to the use of himself and another. The clause would 
then have read thus— ^ where any persons, &c. is seised 
to the use only of other persons/ Now, in the case 
supposed, the feoffee not being seised to the use of 
others onh/, but of himself as well as others, it would 
have been shut out instead of being brought in, had 
the first clause of the statute been so written. Accord- 
ing to the editor's conceptiq^i, the sonae in which Lor4 

4 * Bacoiv 



l^OtfiS AMD EXPLAiSTAtlONS- i6\ 

]BatOh used the expression is this — that they were loth 
to insert the word only, in the first clause of the 
Statute, and thereby to cause the ca^e of on(^ seised to 
the use o)F himself and another to stand in need of ^ 
separate provision being brought into the statute to 
meet it. In short the substance of the whole is, that 
they objected to have a pa rticularand precise provision 
for every separate case ; as— *one, for the case whera 
the feoffees are nothing more than feoffees to uses, 
and neither of them a cestui que w^^»— Another, for 
the case of joint feoffees to the use of ofie or more of 
the same feoffees.— -And a third, for the case of one 
feoffee seised to the use of himself and another 6t 
others*— And that the ground of their objection was, 
that they were loth to insert the word onh/^ which must 
liave been employed to have confined the first clause 
of the act to the case where the feoffees and celles que 
Use are distinct persons, from the fear, that it might 
be productive of the same inconvenience and uncer* 
tainty that it had bred on the statute of 1 Ric. III. ; 
and therefore that the makers of the act preferred 
having a general and comprehensive clause which might 
iticlude all cases: and the general case, as framed, 
would, it is observed, have had that effect ; but still, 
as the case of joint feoffees was a common case, they 
thought proper to express k precisely. 

For the doubt which the word otiIi/ bred on the sta- 
.tute, I Ric. l!ll. see Delamere^s case, Plowd. Com. 350. 

NOTE 96. p. 49. (a). 

The punctuation hath been altered in this place.—* 
In the last edition it is in this manner,—* bred upon 
the statute of 1 Ria» lit.! after this second case : and 
before the third case of rents,' &c. which would iriiport, 

Y that 



162 NOTES AND EXPLANATIONS.^ 

that the second case had something to do with the doubts 
upon the statute of Richard ; but Lord Bacon merely 
meant to observe, that the second saving came in be- 
tween the second case and th6 case of rents. 

The word second was substituted for third in the hist 
edition. 

NOTE 97. p. 50.' (p). 

In the other editions the expression is— it is not a 
saving ; but clearly ought to be needs not^ &c. as alter- 
ed ; for Lord Bacon having a few lines before said,, that 
the third case needeth no saving, is in this place, as* 
sighing a reason, why, it needs it not. 

NOTE 9Z. p. 50. (?). 

In the other editions it is written, you find never a, 
stranger ; which must be, incorrect ; for Lord Bacon, in 
order to prove that the third case in the statute of uses 
needed no saving, is giving instances of other statutes; 
penned with an ac si, in which no saving is to be 
found. — Thus, in speaking of the statute 32 Hen..yiIL 
a fejT lines below, he. observes, * and therefore you 
fixiA no saving \xi the statute.*— The editor, therefore^ 
thought himself justified in substituting the word sav-* 
ing instead of stranger. 

NOTE 99. p. 50. (r). 

So that the statute in effect merely says,, that in case 
of such an alienation, the persoi> in remainder shatf 
have the same right to enter immediately, as he would 
have otherwise had upon the death of the woman^ in 
casino alienation had been made, leaving him in all 
respects in the same situation with, respect to other 
persons^ as if no such act had been made ; and the 

rights 



NOTES AND EXPLANATIONS. 163 

rights of others not being touched on account of the 
special wording of the statute, there could be do 
necessity for a saying of those rights. 

It should, however, be observed, that where the 
woman and an after taken husband join in the aliena- 
tion, it is provided by the statute^ that after the 
decease of her husbadd she may re-enter according to 
her first estate* 

NOTE 100, p. 50. [s). 

. The ^ying in the statute of 1 llic. III. is, ' of such 
right, titie, action, or interest, by reason of any gift 
in tail, as if that act had not been made ;' and in 24 
Hen* VIII. it was held, that this saying was to be taken 
of tenant in tail in possession, and not tenant in tail 
in use. ^e^ Bto. Mr, feoff, aL uses, pi, 40, and sxipra 
p. 5* 

NOTE ioi. p. 50. (/)• 

In the other editions the passage runs thus,-—* N?iy . 
it hath farther words, namely, in lawful estate and 
possession, which maketh it stronger than any iu^ the 
first clause.' ^ 

The propriety of the alteration with respect to the 
substitution of the words Jirst clause^ instead of the 
word «V, will be manifest, when it is considered, that 
there 1$ nothing which the pronoun it can represent ; . 
for Lord Bacon in the former part hatb not been speak- 
ing of one case or clause only, but of both the cases 
or clauses which are not penned with an ac si; and 
wbeii it is considered also, that only one of the claul^Si 
and that the. first, contains the words lawful estate ^ &c; 

^nd with respect to the alteration from Jirst clause , 
to secQJid clause ip the concluding part of the sentence^^ . 

Y2 the 



164. NOTES AND EXPLANATIONS. 

the statute itself will evince that it was warranted ; for 
the clause alluded to, is the one which hath not tlie 
strongest words, and by referring to the statute it will 
\x^ seen, that in the second clause the words are not so 
strong as in the first ; the words in the first clause beings 
that cestui que use shall be in lawful estate, &c« ; and in 
the second clause, merely, that he shall have such 
estate in the land as he had before .in the use, withoMt 
the word lawful. 

a 

As both clauses cause tlie estate of the feoffees to be 
in cestui que use, but the first only, and not the second, 
says, that he shall be in lawful possession, the follow^ 
ing observation of Lord Bacon^s is accounted for— « 
^ for if the words only had stood upon the second 
clause, namely, that the estate of the feoffee should 
be in cestui que use^ then perhaps the gift w;ou]d have 
been special and so the saving superfluous :' but the 
words latiful estate and possession, , &c. in the first 
clause, clearly rendered the saving, as to that clau^Q 
at least, indispensable, 

NOTE 102. p. 51. (u). 

Supposing the estate, &c. of the feoffees to be ab^ 
solutely taken from them by the purview of the act in 
the first instance, their regress to revive future uses 
would certainly be ban-ed, at least by the letter of the 
act, for the reason here given by Lord Sacon, that the 
statute has no saving of the right of the feoffees where 
they claim to the use of another ) and in that case, if 
the possession should be disturbed by disseisin, and 
should not be revested by some one having a vested 
I se, then could a future use never arise on account of 
the inability of the feoffees to enter. ,But the editor 
CQPtends^ that the feo^ees are not driven to seek ^ 



\ 

V 



NOTES AND EXPLANATIONS. I€5 

shelter under the sayings of the statute ; and his argu- 
noient rests upon this ground, that where future uses 
are Hmitedy the statute does not operate to take the 
estate of the feoffees absolutely and permunentb/ out of 
them, but that they have still a possibility pending tbo 
contingency of the rise of the future use ; and, that 
qpon the happening of that contingency, the posses- 
sion would by act of law revert tp them ; but if there 
has been a disseisin to prevent the reverter, that then' 
the law considering the feoffee as entitled to the pos- 
session, would give bim the r^piedy of regaining it by 
entry. 

With the view of supporting the above propositions^ 
it is to be observed, that it is enacted by the statu te, 
that ^ the cestui que me shall be deenfied in lawful seisin of 
and in such like estate as he had in the use ;* and that 

* the estate, &c, of the feoffees shall be deemed to be' 

* in cestui que use after such qualit'i/f marmer^form, 

* and condition^ as he hath in the use,^ Now, in con« 
sequence of those qualifying words in the act, tlie 
property and quality of the use as abstracted from the 
possession, is not drowned when the possession is 
executed to the use ; but on the contrary, as uses were 
at common law guided at the wills of thp parties, so 
also are the possessions when annexed to those uses. 
See 2 Leo, 16. 2 Hep. 78. 1 Jtep. 100, Therefore, 
if an use be limited to A. in fee, and if B. pay 401. 
then to B, in f&e ; here,, although all the seisin of the 
feoffees is ta^en from them, and immediately executed 
tp the use of A, in fee, yet, forasmuch as that use 
^'ould liave been determinable before the statute upon 
P.'s payment of the 40l, so the possession of the feoffees 
having been taken from them not permanently, but 
qii]y during the cpptinuance of the use, does upon 

the 



JW NOTES AND EXPLANATIONS. 

die det^rminatjon of the use revert to the feoffees; 
and tben> the event having happened upon which the 
Bse to B. is to arise, immediately upon the possession'^ 
leverting to the feoflfees, they become seised to the 
Yise of B. and the statute instantly transfers the pos* 
sfttaoato the new use. 

• Until the event happens u'pon which the new uses 
^aee to arise, the feoffees have but 9 possibility, and 
that possibSity, as well as the nfianner of Its being tfi^ 
d«ced to ah estate, wis well explained by Fenner, 
•hifiltice in ChudhigMs case, (See I Rep. 137.) * If 
tenant for life, said Feuner, make a lease to him in 
tlie reversion, aldiough the lessee 'had but a f refold 
and departed with a freehold, yet, the lessee hath a 
pdssibility which by the>death of him in the reversion 
ixtay come in estate ; so, although the whole estate of the 
feofifees be transferred to the uses in esse* (as to A. who 
has the present fee simple of the' use,) ^ yet a. possibility 
dotih remain in the feoffees j which by the determination 
of the' first uses may be reduced to an estate sufficient to 
serve the future uses.* Then, as the estate, possessions 
&c. of the feoffees is not*.^wbere future uses ar6 limited 
—absolutely and pennanently taken from them when 
it is executed to the uses hi esse, but will by law revert 
to them When the event takes place upon which the 
first uses are to cease, and the new uses are limited to 
iurise, it follows, that if upon the happening of that 
C0ent, the reverter of the possession is impeded by 
reaison of its having been disturbed by disseisin, the 
feoffees will have a right of regress for the purpose of 
restoring it. 

• That the feoffees may make a regress in suqh case» 
wasibeld by the major part of the judges ip Chudkigh^s 
case, (1 Sep. 13^. b. 137. a,) who said, that * the con, 

* structiou 



' NOT?5S^AND EXPtANATlONS. Ut 

* stmctipn of the feoffees bav^ing a possibility befora 

* the coming in^es^ of the future use, and of therf 

* having sufficient -estate and seisin to serve the future 

* use when it dwcs cdme in esse^ was jiist and con* 

* sonant to reaifeon And equity, foi-- that by such con- 

* struction the- interest and ' power^ that every one had 

* would ioe preserved by the act; f^^y if the possession 
^ were disturbed 'ijr ttisseisin ar otherxmsej theJeofee§ 
^ waidd have power to enter to revive the future uses 
'i accordtag to th6 U'llst reposed in them/ 

The doctrine of a rig^litof «entry>in the feoffees, "wiat 
also iesolved by Rolie \ and Irhe ^ other jtdges in the case 
ef Wegg.wnA Filiars* See. 2 RM^ 797* pL 14. and 
note 9i. supr^. ' ... 

For the purpose- of «iho#ing, that tb^ feoSbes are^ia 
«Qrae cases entitled to a regress, although not by Tirt«a 
of the savings of the statute, has the editor .beeutbutf 
minute in his examination, of the point ; a point which 
13 of great ifnportance, inasmuch as in cases where the 
seisin has been devested and not revested by tho^e who 
have veaied uses, all uses which were in contingency at 
the time of the disseisin, must for ever fail of having 
effect, iinless, inconsequence of the qualified manner 
in which the possession is taken from the feoffees by the 
statute ^here future uses ire limited, they are entitled 
to a regrcKj. itee 1 Rip. 126, 137. and note 90. 

NOTE 103.. p. 51. [v). 

In the other ^editions it. is aw^— instead of; w«^-r«n 
executed by this statute.^-^Lord Bacon is pointing, out 
bythe insertion of wha^t additional words in the^sayjngik 
of the sta^to,. the feoffees would have had a right d£ 
^tering for the.beai^fit of a future use :— Now had tb^ 
word and been inserted in the second saving, t^ 

feoffees 



168 NOTES AND EJtPLANATlOJyi 

feofie^ would have ha,d a right of entering, not (of 
the benefit of uses as yet uneiiecuted, but in respect 
of those uses which had been already executed, by the 
statute. The word and vfonld have enabled the feoflee^ 
to intermeddle with the possession whilst it was annexed 
to the, uses executed by the statut;e, which was thef 
very thing the act meant to prevent, when it excluded' 
them : But the word not would have saved to the feotfee^ 
a right of regress for the benefit of such uses only as 
never had been touched by the statute, as future and 
contigent lises; and the great question to which Lord 
Bacon alludes, and which was much debated in CAud* 
leigKs case, cited in the preceding note, was, whether 
the feoffees had a right of regress for . the revival of 
those future and contingent uses?— The substitution 
therefore of the word not in the place, of and was 
necessary. 

NOTE 104. p. 51. {w). 

In the other editions, instead of feoffees to an use 
there is the word feoffee only. That the alteration is 
correct appears from what is said a few lines below in 
allusion to the person here spoken of — and they yet 
claim to an use. 

NOTE 105. p. 53. (z). 

Before the making of the statute of 27 Hen. VIIL 
c. 10. the greatest part of the land of England was in 
conveyances to uses ; and for as much as a wife was not 
dowabl e of us es, it had been usual for her friends upon 
ler marriage, to require, that the husband should cause 
the feoffees to his use to make an estate to him and his 
wife for their lives or in tail, for a competent provisipir 
for the wife, after the husband's/ death ;. and tWs was? 
the original of jointures. 

« The 



KGTES and EXPLAi^ATIONS. 160 

. 'The dower at conunon law could not in those times 

* 

b^ depended on ; because^ although the husband might 
be in the enjoyment of large estates and to all ap- 
pearance the legal owner, yet it was possible, nay 
probable, as uses were so general, that the legal estate 
in. the lands was in feoffees, and he himself merely 
cestui -. que use^ and. consequently bis wife not entitled 
to dower ; hence, prudence demanded, that a certain 
estate should be settled as a provision for the wife^ 
. , When t)ie statute transferred the possession and estate 
of the l^ijid^ tQ, the use, the wife of cestui que use be- 
came dowable of those lands of which the husband at 
the time of the statute had only the use; and con- 
sequently, wives who had been so joiptured, would in 
addition to their jointures have had dower in the residue 
•pf their husbands lands ; and as Lojcd Bacoix observes^ 
have b^n doubly advanced if the statute had not made 
provision to the contrary ; for the lands settled on the 
wife on her marriage in satisfaction of dower would not 
have barred her, because, dower is a freehold, and a 
right or title to any inheritance or freehold, cannot be 
barred by collateral satisfaction or recompence. 

By this statute, if a jointure is made on a woman 
before marriage, and accepted by her in lieu of dower, 
she caimot after the husband's death wave it and take 
her dower ; but,, when the jointure is made after mar- 
riage, she hath an election to have either the jointure 
pr dower at common law. See the statute, and see 
also VemorCs case, 4 Rep, 1. and Gilberfs Law qf 
UseSf il47, 

NOTE 106. p. 53. (a). 

' 'rhe franktenement or freehold doth not pass by the 
bargain and sale before enrolment. Two modern 

waters 



/ 



172 NOTES AND EXPLANATIONS. 

was altered at common law before the statute of enrol-* 
ments, and that by the statute of uses the possession 
' had teen executed accordingly, if the statute of enroll 
ments had not been made to restrain itC^ So that it ap-» 
pears from this case, that the statute of enrolments 
restrains the alteration of the use from the bargainor to 
the bargainee until enrolment ; and consequently, — ^aa 
it is only by reason of its following the use that the 
bargainee can have the legal estate or freehold— the 
legal estate or freehold is prevented from being in the 
bargainee, upon the execution of the deed. 
' In Hyndes case; 4 Rep. 70, 71. it was held, that ** if 
a bargainor makes a bargain and sale, and levies a fine 
to the bargainee before enrolment, and then the bargain 
and sale is enrolled within the six months, the bargainee 
shall be m by the fine, and not by the bargain and sale.** 
Now, that which was fir«t intended to be conveyed by 
the bargdn and sale, could not have passed from the 
bargainor to the bsu'gainee by the fine, i^nless it had 
remained in fhe bargainor to pass. 

The same implication arises out of the case of MaU 
levy V. Jennings J 2 Inst. 674. Sewster made a bargain 
and sale to one on the 7th of November, on the ^h he 
acknowledged a recogn'fzanee to another, and on the 
20th the bargain and sale was enrolled, The question 
was, whether SeVstfer the bargainor was seised in fee 
on the 9th of November ? And it was adjudged una 
*voce that he was not. Now, if we were not to examine 
further, the impression would perhaps be, that th© 
freehold did ?tot remain in the barga;inor until enroU 
ment, since the adjudication was, that en the 9th, a day 
between the date of the bargain and sale and the enrol-r 
inent, he was not so seised ; but the case goes on to 
eive a reason which conducts us ta a different conr 

•^ elusion: 



^J 



NOTES AND EXPLANATIONS. 17$ 

elusion ; the reason assigned is, ' for that when the 
* deed was enrolled, the bargainee was in judgment of 
^ law seised of that land from the delivery of the deed'. 
So that the reason, why Sewster the bargainor wai 
held not to have been seised on the 9th of November, 
was not upon the ground? that the freehold passed out 
of him to the bargainee upon the execution of the bar^ 
gain and sale ; but, in conseqnence of the enrolments 
relating back to the delivery ^ and causing the bargainee 
to be in judgment of law seised as from the delivery^ 
And it is to be inferred from the^words,— * the bar- 
gainee was in judgment of law seised when the deed 
was enrolled,* that such bargainee was not in judgment 
of law seised before the deed was enrolled ; and con* 
sequently, that until enrolment it remained in the bar* 
gainor. 

That the freehold does not pass to the bargainee 
upon the execution of the deed, is also evident from 
this, that if a man bargain and sell his manor to which 
there is an advowson appendant, the bargainee can 
make no title to present before enrolment, 1 Bac. Abr. 
470. 5 ed, and Gilberfs Law of Uses, 92. and the 
^uthoritiefi^ diere referred to. 

And it is fiirther evident from the circumstance, that 
if a bargainor seised in fee before the making of the 
bargain and sale, marries and dies between the date 
and enrolment of the bargain and sale, his wife is 
dowable ; but her dow^r is liable to be taken away, if 
the bargain and sale be afterwards enrolled in due time, 
because the enrolment would relate bapk to the time of 
the date, and consequently place, the bargainee para- 
mount the title of dower "; but it is certain, that if the 
f^tate had not continued in the bargainor until enrpl- 
fDi^vit^ bis wife would not have had any dower to be 

taken 



I 
I 



17* NOTES AND EXPLANATIONS, 

taken away. See €om. Dig. tit. bargain and iult, 
(B. 9,) Shep. Touch, ^26, 227. There we many otfeet 
Cftses in the books, not one of which farows a diflierent 
coociusion. * 

We are now come to that, which ih addition t0, what 
faath been ahneady advanced upon the mih^ect, :wUl, it 
IS presumed^ be x:0nciusiTe^«^Thei author of Baebn't 
dbiidgiiient assigns as a reason j w^y the bargainee in 
•acb cases sub Hj/ndes* csui^ aboyie ctted, ia in by tb^ 
fine and not by the bargain and sale/ ^^ that theire^old 
^* and theti^ is in the bargaibor till earolmeatJ' See 
1 £ac, Abr. 471. ed. sufD. And again^ in the mn^ 
page<-^^' the coatract (barj^n and sale) had npt any 
^^ {1^/ to pass the estate from the bargainor before 
^ enrolment/' Lord Chief Baron Gilbert, also {Law 
of Uses and Trusts^ page 92.) says expressly, tteUt 
the bargainee fuith not the freehold till enrolment ^ for 
till theji there is no comeyance effectual io aiter the 
preperiy. 

Lastly, what says thcstatutje itsdf.— *^ Niojuanors, 
^^ lands, &c. shall pass, &e. ircaai one t» another^ 
^^ wh^eby any estate of inheritance orfree^d^ ahatt 
'^ be made or take effect in any person or persons, or 
** any use thereof to he made by reasoa. otnly of any 
^ bargain and sale thereof, except the same bargain 
^^ and sale be made by writing indeated, seaied, and 
'^' imrolled, &c."' See the sUlute 27 H€». VHJ. c. 16, 
vvhich is prefixed. The woirds of <lie statulie $ure there- 
fore peremptory, that the freehold shall not pass be- 
fore enroliiaent, nor by the way, tbe ttse tliesaof, ai- 
-thongh the hypothecs of a tJiird writer is that before 
*«nr(^ment the bargainee bath an ose and bat an use. 

It is true, that many cases iuure been determined 
upon the princij;de, that the^ freehold was in the bai:- 

2 gainee 



NOTES ANly EX<»LANATrONS. VS 

gainee and not in the bargainor between the datfe of the. 
bargain and sale and the time of linrolment ; but those 
iSases do not go arty tray towards proving-, that the 
legal estate dr freehold vested hi the bargainee upott 
the execution of the convey aeWce, or at any c)th)er time 
before enrolment ; becauise,' l&e ground, xtpbn i^hicfe 
the bargainee was in those casein, held to have the free- 
hold, was, that when the enrolment was mktde it had a 
retrospect viz. d relation back to the delivery of the 
deed, so as to cause the bargainee to be in judgfnent 
of taw seised as from that trme.-**Ih 'Oeritafe reiy the 
bargainee is not seised until enrohaetrt ; but when the 
enrolment takes place- then by ficdon of law, (and a 
relation back is nothing but a fiction of law, which is 
ever otherwise than the thing is in truth. FincVs Lcrw6&, 
3 Ifep. 29.) be fs cdnsidered, as having beetr seised from 
the time ot the date or delivery ; but, for saying at a 
time when no enrolment hath been made, that the bar- 
gainee is either in fact or in judgment of few seised of 
the freehold, tbei^e Is not the smaHest foundation ; as, 
supposing a bargain and sale to be made on the 1st of 
May, and to be enrolled on the lourth of the same 
month—it would have been a feke assertion to have 
said On the jTrtd ot 3^rd of May that the bargainee was 
iseised of the freeh(C)IdV but after the enrohneht oa the 
4th had takefl blate, it would have been correct enough 
to haVe said, that the bargainee tVas seised of the free- 
hold on the 2nd and 3rd ; because, iti consequence df 
the enrolments baying a relation back to the lime of the 
date, the bargainee woutd'te in judgfnent of tdw seised 
as from the 1st of May, There is a case stated by our 
author himself .in ps^sdS.itni ^?, which will serve to 
ducidate the poi^t under copsidefation.-r^ If an aU 
f teijited p?r$an be eafeoflfed to an.u^e, the King's titl^ 

* after 



17« NOTES AND EJiPLANAT^ONg. 

' after office found shall prevent the use^ and relate 
' above it, but until office the cestui que use is seised of 
*' the land/ So, after enrolment, the title of the bar- 
gainee shall prevent the freehold from being in the 
bargainor after the date of the deed, and relate above 
it; but until enrolment, the bargainor was seised in 
the one case, in the same manner as t\xQ. cestui que use 
was, until office, seised in the other. 

This note hath already proceeded to so great a length 
as to induce the editor to decline a disquisition of the 
different and contradictory cases which are to be met 
with in the books with respect to what purposes the en- 
rolment shall have a relation back to the delivery ; and 
he will therefore content himself with observing, that 
all the books are agreed, that the enrolment will have a 
relation back to make good the recovery of the bar- 
gainee against whom the praecipe was brought before 
enrolment. The books are also all (with an exception, 
however, of what was said by Jones justice in the 
case of Flower and Baldwin^ Cro.Cdr, 217. against 
the opinion of Croke, and in which case there was no 
judgment given) agreed, that the relation back of the 
enrolment Tvill avojid ftlLinean estates or charges made 
to a stranger by the bargainor, after the delivery of the 
bargain and sale, a^id ajso take away the dpwer of the 
wife of the bargaipor, ^bece he marries and die^s. after 
the delivery of the de^d and before enrolment^; But 
with respect to ,aln^ost all other purposes, if not every 
other purpose^ the books are iit variance upon the 
question, whether the em'olment shall have a rektioa 
back or not, ... 

. i. 

^ NOTE 107. p. 53. (i). 

The reason of these cases is, that every part of the 
land being liable to the extent and to the statute,e^ 

{merchant^ 



NOTES AND EXPLANATIONS. 177 

{merchant, Xc. which is the kind of statute our author 
means,) they, like a rent charge, cannot be apportion- 
ed ; and the consequence would have been, but for . 
this proviso pf the statute, that if, as in the case sup- 
posed by our author, a man had an extent of 100 acres 
and the use of one of them, the statute executing the 
possession to the use of one, would have been an 
extinguiishment as to that one, and then, the extent not 
being apportionable, it would have been an extinguish- 
ment as to the whole. And with respect to the conuzee 
of a statute, it was likely to have happened, that the 
conuzee at the time of the statute of uses had taken a 
conveyance of part of the land which was subject to 
the statute, to some person to his use, in order to 
prevent that very extinguishment, which would in such 
cases have been the consequence of the statute, but fpr 
this proviso, 

NOTE 108, p. 54. (c). 

In the other editions it is all the time of the statute ; 
and in the last edition the word remedy in the next line 
but one, was first inserted. 

NOTE 109. p. 54 ((/). 

In the last edition it is said, collateral benefits, or 
vouchers, aid-prters^j but should be, ^vouchers, &c. 
the vouchers, &c. being the collateral benefits alluded 
to': and it should be aid-prayers instead of aid-priers, 
as appears from the statute itself. The aid-prayer, is, 
where a pferson impleaded, as tenant for life for example, 
petitions the court to call in help from another person, 
that hath an interest in the thing disputed, as the re- 
mainder-man, or reversioner ; that is, that they may be 
joined in the action and help to defend the title: 

See .3 Black. Comm. 300. 

A-a NOTE 



m NOTES AND EXPLANATION! 

\ 

NOTE 110. p. 54. (d). 

It giveth occasion also to intend, tb^t, nt th^ genesrul 
words in the body of the law de not confar ^o^ be- 
nefits—Hind, that, as by this proviso tbqy are not giv^ 

,to any cestui qtu tise^ after the expiration of n year 
from the time of th^ statute, viz. after the Ht of May, 
1536— it was the intention of the legidlatut^* that 
cestui que uscy who might have an estate ex^uted aftc^ 

. that time should not have those advaats^es ; and favours 
the opinion^ that it was th6 intenticm of the legislattiie 
to discouriige the practice of uses as observed in a pre- 
ceding note. See note €Q. 

NOTE 111, p. 57. (g). 

The lands would not have been sulgect to the use ia 
the hands of the grantee, although the grantee had 
notice that the King had been originally a feoffee of it 
to uses ; because, at the time of the grant, it was not 
subject to the use in the ha^ds of the grantor. To 
pr^v^t the if^ury which might happen to those persons 
to whose use Richard had been enfeoffed before ibis 
usurpation, the statute mentioned by Lord Bacon in 
page 32, was passed. 

NOTE 112. p. 57, (A). 

An imperial Queen, would be as much incapable b£ 
being seised to an use as a King, and for the same 
reascHi. 

NOTE 113. p. 57, (/). 

The tyep reasons first assigned by Lord Bacon, are 
reasons, why a corporation could not be seised to ao 
use at cQmmcHi law ; but the thirds which he considers 
the chief reason, is one which accounts for the non- 

execution 



NOTES AND EXPLANATIONS, J79 

cxecutioii of such an use by the statute, even sup- 
pasing, that at comipon law a corporation might have 
been seised to an use. At the time of the statute of 
uses, it was unsettled, whether a corporation eould 
take to any other than to its own use. Brooke in th^ 
} 4 Hen. VIII. inclined to the opinion, that a corpora^ 
tion nught be jenfeo(Fed to an express use. See the 
rear bookf 14 Hen. VIII. 8. a, and Bro. 4br. feoff, a/* 
uses^ pL IQ. .But in a subsequent case, in 24 Hen. VIII. 
Bro. 4bx* feqff^^ dl' v^^y pi* ^0. he states it as being 
the better opiilipu, that a corporation cannot be seised 
to an use, for their capacity only is to take to thdr 
own use. Jn a case in the 28 Hen. VIII. the ne^ct year 
after the statute, (See Dyer 8. b.) it was said, that an 
abbe and convent could only take to their own use. 

It should be observed here, that the above cases are^ 
that a corporation cannot take to t]ie use of another, 
for,— -as to whether a corporation can stand seised tp 
an use — ^a material distinction is to be made between 
tl)eir capacity of standing seised to an use, whef^ 
they are enfeoffed to an use originally, and so talce to 
that ase in the first instance; ^nd, where they stand 
seised to an use by limiting an use out of, or charging 
an use upon, possessions akeady theirs } for in the cose 
of Sir Thomas Holland and Bonis y 3 Leo. 175. re^ 
ported also in 2 Leo* 121. under the tide of Holland v. 
BoinSy this distinction was taken. 

Upon the authority of the last mentioned case. Chief 
3aron Comyns (See Coin. Dig. tit. bargain and sale^ 
[B* 3.] ) concludes, that ^ a corporation may give af^ 
use, though they cannot be seised to an use ;' and that 
coujclusion is, in the present day, gei^rally received ; 
but it doth not appear to the editor, that any suclj 
concliiision is warranted by that case ^ but^ on the cpja- 

A a 2 trary. 



J 80 NOTES AND EXPLANATIONS. 

traty, if it amounts to any decision i^tt all upon the 
subject, it is, that a corporation viay be seised to the 
use of another, as he will now attempt to prove.— We 
are informed by the reporter, that ** it was further 
** objected, that a bargain and sale by a corporation 
^* is not good ; for a corporation cannot be seised to 
•*' anpther's use ; and the nature of such a conveyance 
** is- to take effect by way of use in the bargainee, and 
** afterwards the statute to draw the possession to the 
** use : but that the court utterly rejected that exception 
*^ as dangerous, for that such were the conveyances. 
*^ of the greater part of the possessions of monasteries." 
This is all that Was said by the court upon the point. 
Then, as the objection was, that a corporation could 
not be seised to an use, and as that exception was 
utterly rejected by the court, did not the court in 
effect determine that a corporation might be seised to 
an use? And if so, where is the authority for the 
modem doctrine ? In fact, it is absolutely impossible, 
that an use could have been at common law, or can be 
^ince the statute, without a seisin to it ; and con- 
sequently, it is impossible, for a corporation to^give 
an use without being seised to an use. 

It is further observed by Leonard, l:hat it was said in 
that case by Seijeant Shuttleworth, that, *^ although 
such a corporation could not take an estate to an- 
other's use, yet they might charge their own posses- 
sio-fis with an use to another:" And there certainly is 
a material difference between their taking to the use 
of another and their limiting an use to another out of 
their own possessions, for that is, as the editor con- 
ceives, what Shuttleworth meant. All the arguments, 
that'—* their capacity is only to an use certain,— that 
they can only purchase for the common braietit and 
* - for 



NOTES AND EXPLANATIONS. 181 

for the ends of their creation, and— that they want 
power to take lands to the use of other people/ (see 
supra 42, 57, and GUberfs Law of Uses 5, and 110,) 
—are very strong against their taking to another's use;' 
but do not apply against their limiting an use to an-^ 
other out of their own possessions ; at least, not wher^ 
they have authority to convey away those possessions i 
nor does the reason above given by Lord Bacon, that 
^ they cannot execute an estate without doing wrong to 
iheir corporation or founder,' carry any influence in 
such cases. It is in fact taking pretty much the same 
distinction with respect to a corporation, as Lord 
Bacon hath taken with respect to a bishop in the case 
which he has next stated, viz. that the bargain and 
sale of a bishop will be good for his life, but that if st 
feofinfient be made to him and his successors to an use, 
the use is not good for the bishop's life even, but merely 
void. 

It should be remarked however, that a modern writer 
tmderstands the expression of Shuttleworth, * that they 
might charge their own possessions with an use,' ia 
this sense, viz. that tJiey might an7iex an use to the 
land itself f as distinguished from an use annexed in 
privity to the estate and to the person touching the 
land ; but thb does not appear to be a fair interpreta^ 
tion of the passage ; for there is no reason to suppose, 
that Shuttleworth meant to say, that uses might be 
created in a different way by a corporjation than by 
common persons, and it was contrary to the nature of 
uses to be annexed to the land : It had been argued, 
that a corporation could not .be seised to an use, and 
Shuttleworth admitted that they could not take to the 
use of another, but that they might charge their own 
possesdipns with an use to another. Now it is reason* 

able 



ISa NOTES AND EXPLANAtlON§< 

able to suppose, that what he meant was that thej 
might do what had been doqe in that case, scilicet , giv^ 
an use to another.<*-"If the expression had been tb^t 
a corporation could not stand seised but might charge^, 
as through mistake it hath been represented, ther^ 
would be some colour for the above exposition | be- 
cause as. they could not raise an use out pf their own 
possessions to another without being seised to an use, 
it would be reasonable to suppose, that by the e)c« 
pression of charging tlieir possessions with an i^s^ 
a mode of limiting uses different from the cpmmoq one 
was meant ; but as the expression was that they could 
not take but might charge, it is more reasonable to 
$upposc, that he meant they might give an u^e, or iu 
other words raise an use to anoth^, of their own pos- 
sessions : If, however, Shuttleworth meant to attach 
to the expression he used, the meaning which the author 
alluded to hath supposed, then it would be proved 
erroneous by every principle and authority to be found 
in the books, as 1 Rep, 121. amongst others, and most 
certainly an observation so absurd would not have been 
worthy of being recorded .•'— It is to be presumed, from 
the circumstance of Leonard's having preserved the 
expression, that it had been approved of, as a sound 
and substantial distinction ; but if it had been meant^ 
that a corporation might limit an use differii^g altogether 
from uses in. general, it is not to be believed, that 
such a doctrine would have been listened to one mpment 
by the court* The editor would not have said so mudi 
upon the expres^on of Shuttlewoirth, if very great 
stress had not been laid upon it by others, who (as it 
is thought) liave misapprehended its meaning : — But, 
whatever may have been th^ arguments of cQun$^ 

itt 



KOTES AND EXPLAIsTATIONS. ' Ui 

hn the base, it is positive, that the opinion of the court 
was, th4t a corporation might be seised to another'b 
tise by their bargain and sale. 

There iBtppears to me to be a sti?>ong argument irt 
favour of a corporation's being seised to an Use, fblr 
wherethey might convey by feoffinent, &c. as the cban** 
cellor considered the purchaser for a valuable considera* 
tion as having the use, and the bargainor as a trustee 
Ibr him where the bargainor refused to convey, so would 
the bargainee of a corporation be considered as having 
an use at common law, and the corporation as bdng 
A trustee for him ; but then would come the argument 
which is to be met with in Plow. Conim. 538, and 
Gilherfs Lmv of Uses 5. that the chancery hath no 
process on the persons who form the body, corporate to 
compel them to discharge the trust— an argument, 
hovrever, which would not hold at this day, for foodies 
politic may be trustees, and in such cases, are con- 
sidered in a court of equity as individuals. See Bac. 
Jtbr. ed. by GivtHiniy 7 vol. 94. in a not?e by the 
itditor and the authorities to which he refers. And as it 
is now heM, that bodies politic may be trustees, the 
weight of the objection which wa6 stated in Chtedieigfi^s 
case against a corporation's being enfeoffed to the use 
of another, ^ because that a trust and. confidence could 
not be placed in a corporation on account of its being 
a dead body,^ is done away ; but still the bargain and 
sale of a corporation would not pass an use to the 
bargainee which would be executable by the statute, 
as Lord Bacon observes, on account of the word person 
which is used in the statute when it speaks of the feoffee^ 
a term which is not applicable to a corporation ; and 
the legislature evidently considered that it was not 

inasmuch 



184 NOTES AND EXPLANATIONS. 

inasmuch as it adds the words body politic to the wonib 
person or persons when speaking of the cestui que use. 

In the above case of Holland v. Bonis y it seems in- 
deed to have been the opinion of the court, that an use 
raised by .the bargain 2nd sale of a corporation wonld 
be executed by the statute, but the editor cannot think 
that any court would consider itself bound by what 
was i^id in that case, to decide contrary to an act of 
parliament, (and contrary to the act would such a 
decision be, because although by a court of chancery 
the members of a corporation may be considered as 
natural persons, yet in a court of law they would be 
looked upon as merely constituting a dead body, to 
which the word persons as used in the statute on the 
part of the feoffees, would not extend, and clearly was 
not intended by the legislature to extend, since bodies 
politic are spoken of expressly where it was intended 
to include them,) especially as the decision in that case 
did not establish the bargain and sale, but on the 
contrary, was against the person who claimed under 
the bargain and sale upon the ground, that the con- 
veyance was not well pleaded ; for they had pleaded 
it as a grant, whereas it ought to have been pleaded as. 
a bargain and sale. See 2 Leo. 122. in note. . 

NOTE 114. p. 57. {k). 

Whether an estate tail can be by express limitation 
to the use of another has been vexata quastio.'^It was 
held in a case in 24 Hen. VIII. Bro. Ahr, feoff, al. uses^ 
pi. 40. that a tenant in tail should not be seised to 
an use express, but to his own use : The case was^ 
* a man made a feoffment in fee to four to his use ; and 
the feoffees made a gift in tail to a stranger withoi^t 
consideration, who had no knowledge of the first use, 

4 habendum 



NOTES AND EXPLANATIONS. 185 

habendum in tail, to the use of cestui que use and his 
heirs/ and it was held, that the tenant in tail should 
not be seised to the first use. but to his own use. And 
in a subsequent case, Year book 27 Hen. VIII. 10. a. 
it was said, Jhat it had been of late adjudged by the 
adrice of all the justices, that tenant in tail could nof 
be seised to the use of another ; and the adjudication 
alluded to, was probably the above-mentioned casein 
Brooke. At the time of the statute of uses therefore,* 
the law was, that tenant in tail could 7wt be seised to 
an use. Plowden also in his report of 1Val$inghan€s 
case, in the 15 of Elizabeth, declared the law to be| 
that an use could not be limited upon an estate tail ; 
for one of the counsel in that case having tirgued, as if 
tliere might have been au use upon an estate tail^ 
Plowden to prevent the reader from' belhg misled, 
adds a note for the purpose of informing him, that the 
law was not what the counsel had inferred ; and he refers 
to the above case in the 2f4 Hen. VIII. as an adjudica^ 
tion upon the point. See Plow. 55S. 

However, from the obiter expressions of Manwood 
and others in two cases, in the 14 and 25 of Elizabeth, 
(see Dyer 312. a. and 2 Leo. 16.) an opinion seems to 
have been entertained, that such uses would be good ; 
but, whether such uses were good or not, was not 
made a question in either of those cases, and uses oh 
estates tail were spoken of, only for the purpose of 
blowing, that although, where by reason of tenure ah 
use was implied in one person, yet an express use to 
toother would be good. Those expressions, therefore, 
could not be considered as shaking in the slightest 
degree the positive decision before the statute, with 
which they were inconsistent; but, if from the re- 
spectable quarter whence those expressions proceeded, 

B b they 



m NOT^S AND EXPtANATIONS. 

they at first carried any weight, a case wa^ afterwards 
decided which totally took it away^^^^The case aUqdcd 
jto, was Lord Cromwell's case, in the 43 of Elizabeth, 
wherein the judges held, upon the authority of tlie 
above cases in th^ reign of Hen, VIII, and as a reason 
for one of their resolutions, that an estate tail could mt 
be by express liipitation to the u^ of another. See 
9 Rep, 78, a* and 2 And. 87. And in the last qase^ they 
looked upon the saving of estates tail in the 1 Hie. HI. 
^supra page 5 and note 100,) as an admission and au 
a4]Hdic^tipn by parUament to that effect* It appears, 
therefore, to have been determined by positive deci- 
^ipn^ upon qases, a^ well after as before the statute, 
|:hat aa ^^tat^ tail Qpuld not be to the use of another : 
and it is material to note it pointedjy, because the case 
of Cooper v. Frunklinj which bath been relied upoa 
|)y 1;he most Respectable chai'acters as an authority 
agaij[ist the use qu an estate tail, is not perfectly satis-- 
factory, in conse(|uence of the different reporters of 
that case not being a^eed a^ to what the actual deter* 
minatioa y9^. That case, which arose in the reign of 
. James I. was twice argued, and one of the points in it 
was, whether an use might be limited upon an estate 
pxl at cQQ^^moiV l^w or at that day after the statute 27 
Jlen. Vlll-rrrof uscs ?■— -Croke, who has reported the 
first a^g^In6^t, says, that the opinion of the court 
.^pon the argument inclined^ that the limitation of an 
use out of an estate tail was *ooidf as well after the 
Statute as before. See Cro. Jac. 401. and in Bulstrodc^s 
reports, (see 3 Bylst. 184,) we ai*e informed^ tbaitthe 
judgment pf the court upon a second argument was, 
that a tenant in tail could not be seised to an use. Hpw* 
ever, according to Godbolt, (see Godb. ?69.) tte 
Resolution of the cou^ w^s directly contrary, viz. that 

tenant 



. NOf £& AND EXPLANATIONS* IBi 

teimnt iii tat! mi^ht stand seised to aft use exp^ressedi 
but th?it such use could riot be aveited. There is 
reason to stippos^, howeter, that the determination in 
the case o^ Cooper r. Prankliriy wa» as Bulstrode re^ 
presents it; for Coke (see 0>. Zitt. 1^. b.) and Rotte 
(1 Holl. Sep: 3^S4. 2 Roll. Abr. 780.) expressly say, 
diat it was adjudged in that case, that tetiant in tail 
could wt)/ stand seised to the use of anbthei*. Asfo^ 
]|foore*s repoit of the case (see Modre 84^.) under the 
title of Carter v. Pranklin^ it doth not concern the 
question under consideration, btit relates entirely tof 
andther poit)t in the case^ vii. whether the heirs to 
whom the use was limited should be intended to be thef 
same heirs as those mentioned >nf the habendum ? 

If t^e case of Coeper v. Franklin j is to be taken as* 
an authority, it muist be itt favour of the doctrine, that 
tenant in tail cannot stand seised to an use ; for surely 
the concurrerit testfimony iii its fttvoui*, furnished by 
the reports of Bulstrodte and of RoHe, as well as by 
Cokeys Commentary upon Littleton, (to.sAy nothing 
of Croke^ although he informs us, that the judges were? 
upon the first argument inclined against the use,) Will- 
not be outweighed by the single report of Godbolt j' 
but, if the contrary report of Godbolt sliould bier crtri* 
si(|ered sufficient to render the accuracy of all the othet 
reporters doubtful, the doctrine is still firmly establish-** 
ed by the cases before the statute, and CromwttPs case 
already noticed. >; 

Nor does the doctrine, that an estate tail cannot b^ 
by express limitation to the use of another, depend' 
solely upon the authority of adjudg<&d cases, tot all our 
great law writers, with the single exception bf Lord 
Bacon, have given it their unqualified support; zi^ 
Lord Coke, (C*. LUu 19. b.) Chief Baron Comynsi 

B b 2 {fiigy 



ISS NOTES AND EXPLANATIONS. 

{lyig. tit* uses. F.) the authors of Sbeppard's Tdii||i« 
tone, and Bacon's abridgment, (see Shep. Touch. 509. 
and Bac. Abr. 5 ed. 7 vol. 95.) and Chief Baron Gilbert^ 
{Gilberts Law of Uses 11, 205, 206.) ^^ ^^^^^'^7 
agree, that tenant in tail canvot stand seised to the use 
of another.— So far in point of authority. 

It remains to examine the arguments upon principle^ 
which have been advanced upon the subject ; but it 
should be previously observed, that the statute 27 
Hen. Vin. c. 10. only executes such uses as were good 
uses before the statute, (see 2 JtoU. 780.)— The chief 
reasons why. tenant in tail cannot stand seised to the 
Hse of another are, first, ^ that by the statute de donisy 
the land is as it were appropriated to the tenant iu tail 
and his issue ;' (see Bro. Abr. feoff, ai. uses^ pi. 40. 
Co, LitL 19. b.) And secondly, that ^ no man can be 
seised to the use of another but he who before the 
statute might have executed to cestui^ use, an estate 
perfect in law;' (see Bro. Abr. ubi. sup.) ' and who at 
the same time might have been compelled to have 
executed such an estate by the chancery.' See Cro. 
Jac, 401. Now tenant in tail could not have execut- 
ed a perfect estate to cestui que use, for the issue, in 
tail had a formedon under the statutte de donis : (see 
Bro. Abr. ubi. sup. and Gilberts Law of UseSj 205, 
206.) Nor could the court of chancery compel the 
execution of such an estate, for it is bound by the 
statute de donis,, (see Gil berths Law of Uses, 11,) Lord 
Bacon alluding to the reason that tenant in tail could 
not execute an estate without wrong, observes, that 
'^ it is quite taken away since the statute, because the 
statute saveth no right of entail as the statute 1 Bic. Ill, 
did ;" butthis observation does not appearto posaessany 
- great force, for the nature and opeiittion i^ the one 

' statute 



NOTES AND EXPLANiATIONS. U9 

statute and of the other^are essentially different. The 
statute of Richard III. would perhaps, f that is, even 
$upposing the use not to be void ab initio,, but which 
the editor at the same time conceives that it would be, 
for indeed it was so held in CroniweWs case, 2 And, 87. 
and so asserted by Lord Coke|*(see Co. Litt. 19. b.) ) but 
for the saving of estates tail> have made uses on those 
testates good which were before void ; in other words, 
it would have prevented the issue in tail from having 
hhsformedon against the aliens of cestui que use, in-^ 
asmuch as the statute, but for this saving, would have 
made the alienation of cestui que u,se good against his 
feoffee and all other persons: But the statute 27 
Hen. VIII. only executing the possession to such uses 
as were good uses, and as might have been lawfully 
compelled to be executed before the statute, (see 2 SoU. 
780.) has not the effect of making uses on estates tail 
good, and therefore any saving of them would have 
been superfluous. Whether the statute 27 Hen. VIIL 
affects uses on estates tail or not, is dependant on the 
question, whether at the time of that statute such uses 
could have been compelled to be executed ? and it has 
been before proved that they could nQt.— -It does not 
therefore follow, that because the statute of Richard 
might have established uses on estates tail, but for the 
saving, that therefore such uses must be established on 
account of the want of such a saving in the statute of 
Henry VIIL 

Some from their manner of arguing appear to think, 
that before the statute of Richard HI. tenant in tail 
^might have stood seised to the use of another, smd that 
his incapacity was occasioned by that statute ; but that 
is a false conclusion, for the saving in the statute rather 
shows. It it was observed in Ct^mweWs case, 2 And^ 

87. 



19» NOTES AND EXPLANATIONS. 

S7. that the law was then taken by the parliament to 
be^ that an use so Kmited was vord. If^ at the time of 
the last mentioned statute, tenant in tail might hare 
been seised to an use, why was not the alienation of 
cestui que tae of lands ip tail made good as well as the 
alienations of those who had the use of other estates^ 
seeing how easily the statute might have been evaded 
in consequence of its not extending to uses on estates 
tail? Had there been any such uses, the saving of 
estate tail would have furnished a clew whereby any 
person wishing to evade the statuAs might have succeed- 
ed ; for it would only have been necessary to make a 
gift in tail to the ute of the donor, instead of a feofK- 
jnent in fee to the use of the feoffor, and then, the 
donee or his issue not being bound by the statute by 
teason of the saving, might have entered on the alienee 
of his cestui que use: And therefore it is to be pre^ 
sumed, that there could not have been uses on estates 
tail at the time of that act, but that such uses were 
by the legislature deemed void, ab initio y in wmch 
case nothing was to be feared from the saving. 3ut it 
may be asked, wbere then was the necessity for any 
saving? The answer would be, — in order to prevent 
the is^ue in tail from being barred of their ^^'wi^rfb;?, 
wliere tenant in tail passed' a tortious fee to others to 
the use of himself, for there, the use not being upon 
an estate tail would have been a good use ; and then, 
the statute making good the alienation of cestui que use ^ 
the issue in tail would h^ve been defeated but for a 
saving of their rights. 

The remark by Lord Bacon > that, *" the reason might 
have been answered before the statute in regard of the 
common recovery,* is certainly the strongest ; for, as 
the donee in tail to an use might have suffered a re« 

CO very 



NOTES AND EXPLANATIONS, m 

«overy and thereby barred the estate tail, he aright 
hava enabled himself to execute to the cestui que uh 
such aa estate as the issue in tail could not have dis* 
turbed ; but still this argument is very far froiu being 
conclusive, beoaui^ the donee in tail was not com* 
pdlable by* the chancery to su^Ter a recovery; for 
though the barring of estates tail was tolerated ^ the. 
restriction imposed .by the statute jde.donis was never- 
taken eS^ and therefore, the court of chancery being 
bouod by the statute,, could not compel th^perforow 
ftHcfa of a deed which the legislature had in effect in- 
terdict. The trust reposed in the &oflee««^and con« 
'sequently the ^ obligation on Ms cooscience wbich the 
couit of iobaiicery would have enforced, was^-^^^o 
execute that restate wbich he bad received, vi2. tha 
lail^ and Jiet to acquire a new estate.-^s, therefore^ 
the estate wbich the donee in tail recemed to the use^ 
timid not have been .peifectly azid effectually ex&oai^ 
ed^f-an ^te ^u^on an estate tail before the statute, was 
void in its first limitation, as observed above* 

In a modern publication it is said, that, ^ tbej^eason 
formerly ui>ged egainst the capaci^ d[ -a tenant in tail 
to hold in <)se, that be could not execute the estate tail 
to the €e$tm que nsfCy without coixraiittii^g a wrong, 
apfieajis &ow to be altogether inapplicable to the 
execfutian of uses; iciasmuch as the tise is executed by 
the operation of the statute, and not by the donee.^* 

I« answer te that observation, the editor admits, 
tbst, if the use Unaited on an estate tail be capable of 
execution by the statute, no wrong would be done by 
the donee in the eKecutiek^ idnce the execution would 
nt»t be by him ; but be ^sontends, that the observation 
has ootbiag to do witb ibe ailment, which is, that as 
the donee could not esecute the estate tail to cestui que 
tise, at conunon law,— the statute cannot, nor was in* 

tended, 



192 NOTES AND EXPLANATIONS. 

tended^ to execute it : And it is to be observed, that 
the words, inasmuch as the use is executed by the statute j 
beg the very question in dispute, that question being, 
whether the use be executed by the statute or not ?-^ 
The observation might have some weight if the ques* 
tion were, whether an use executable by the istatute, 
would be more perfectly executed by it than it could 
have been by the feoffee himself at common law, as for 
example, the case of the infant and feme covert in the 
next page of our author ; ^ut the argument is, that no 
use limited upon an estate tail can be executed at all by 
the statute, by reason that the statute only extends to 
such uses as were good uses before the statute; and 
before the statute, uses limited on estates tail were 
Toid, as it was held in the above cited cases before 
the statute, and expressly resolved since.— 'Suppose 
that a gift in tail had been made to an use immediately 
before the statute; when the statute came, it could 
not execute the estate tail to the use ; for .the reason 
that the donee in tail was not seised to any use, the use 
being void in the first limitation. 

It is i. mistake to suppose, that, '^ the real question 
now is, are the words of the statute sufficiently com- 
prehensive to include estates tail?" i^r it is butase- . 
condary consideration; the primary question is— • 
Could there have been an estate tail to the use of an- 
other at the time of the statute ? if the affirmative 

t 

should be made out, then would it come to be con- 
sidered, whether the words of the statute are sufficient- 
ly comprehensive to include estates tail ? but, as it has 
been already proved, as well, upon the authority of 
positive decisions, as, upon principle, that there could 
have been no such uses, that, which some have thought 
to be the real question, is not, m truth, any question 
at all. 4 

With 



' NOTES AND EXPLANATIONS. l^S 

With respect to the argument of tenure between the 
donor and the donee — as it can have no influence where 
uses are expressly declared in writing, (s^e 2 Leo, 16^. 
Difer 311. b. 312. a.) the editor hath not thought it 
worthy of notite in the consideration of the present 
question. But it may be proper to observe, that this 
note is meant for the case, whether, if land be given 
in tail to A. to the use of B. and his heirs, B. will have 
a fee simple determinable upon the failure of the issue 
in tail of A.? for there is no doubt, that a tenant in' 
tail may stand seised to an use determinable upon the 
death of tenant in tail himself, as in Seymour*s case^ 
10 Rep, 96.-^nd that being the case, the bargain and 
sale of tenant in tail passeth such an use as will draw 
the freehold to it, and cause the bargainee to be a good 
tenant to the praecipe for suffering a recovery* 

The editor therefore conceives, that in opposition 
to the opinion of Lord Bacon, it would at this day, 
upon the great strength of the authority on the other 
side, be received by the courts at clear law— that an 
estate tail cannot be by express limitation to the use 
of another. 

NOTE 115. p. 58* (/). 

By defeating the estate executed during the coverture 
or infancy, they would be seised as they were before 
such execution ; consequently to the uses declared on 
their estates; but executions by the statute of the 
estates of infants and feme coverts cannot be defeated 
by them, because, as it is enacted generally without 
any qualification, that the estate, &c. of the feoffees 
to uses shall be in cestui que uscy the power given to ' 
feme coverts and infants by the common law of avoid* 
ing their own acts, is controled ; and there is no right 

C ^ rese^rved 



1941 N0T£8 AUD fiXPLANATiOm 

resetted to such feofleei ki pArtieolair^ hdr to ftofle^ in 
gisneitil, where thetf claim is to th6 use of another. 
See tiote 147. 

NOTE 116. p. 5S. {m). 

. The word if h not in the other editions ; and for 
want of it) abd according to the punctuation in those 
editions, the passage there irinports that the mim of 
money was to be paid to the use of I, G. and his heirs ; 
but Lord Bacon is supposing, that tte vAe is in the 
first instance limited to the infant feofieeand his heirs, 
and th^t the use of the land shall change from him, and 
be to I. G. and his heirs if I. D. pay the m(Hiey, AO as 
to cause the use to L G. and his heirs to be until pay- 
ment of the money, a cohtingent use. 

NOTE 117. p. 58. (w). 

. The difference between the two ca^es is, that, in the 
one of an use prteedent^ there being nn use in esse 
upon th^ making of the feofTmeht, the statute instantly 
takes the possession from tiie femle covert or infant 
feoffee and vests it in the cestui que w^^, before the 
baron or infant can possibly destroy the feoffinent by 
his disagreement; but m the second case, as the use 
'does not arise to I. G. befbrfe ^ydicWt of the Aioftey, 
ttie infant ttiay before the rii^ of the heW use disAgrte 
k> the feoffment, and by destt'oying the feoffiAent, 
bvertJitow tfcte cohtSngent use. See note 147. So where 
h feme covert is ertfeoffed \o a contingent tise ito a 
sinrilar manner— ^s tihe bkron may by his disagi'teeiiitent, 
kyold his wife's fedffm'eiVt, aftd deVefst the vrhd^ estate, 
{Co* ZiV/. 3. a.) it is in his po^eir, by 'so dcSng brfd*^ 
the future use ari^, to preVeht it from ever ari^tig at 
ill I and if die hiisband shduld >n0t disagree during lu 
' .• * life. 



NOTES AND EXPLANATJONS, 195 

pfe, yet, ^ jlje wife after his 4?ath lu^y M^^ye thp 
feoffraent:, ^Cq.^iff, jh\^») she m^y jilso defi^at the use 
by dis^greeii^ befpre the ey^at jiappens uppo wjiipb it 
is to arise : and §9 may ber heirs aUo, if after tbp 
(leath of her husband she does not by soai^ ^ct^ expr^^s 
Jier agreement to the feofFoient. — Lpr4 Bacon acted 
with his usual lyariaess, in supposing a cfL§e, wberp 
th^e use should be lifxiited tp tl?e infant feqffie Imiiself 
until the p^ymeijt pf tj^e mpnjey ; for if the fi^ofjFmef)}: 
had been to the use of any other person thai)i th,e feoffee, 
^ tQ I. S. for (ejcample^ and then tp I. G. upon pay- 
ment of the money, the future ^se to I. G. couki not 
have been overthrowu by fwiy dis^agreemejit pf the 
infant ; because, as the seisin w'puld imfpediately be 
exjecuted to the use of I. S. it wpuld sp far be tbe pas^ 
of an use precedent, and tjie disagreeoie^t would couie 
top^ late ; ?ind the same law of a fenie XJQvejrt ; for, 33 
the stiatute cpntaius no ^<ivipg pf the rights of infant3 
and feme coverts, the right )vbich they ha^ at co;Bipoa 
h'W of setting aside siji9h fepff^Qents, is tajsen eiwfiy by 
the statute, as pb^eryed i.n note 115 ;, whereas in the 
.Qtber case, notwithstajiding it:he use is deciai:ed to thei^ 
tbey continue seised ^t common law, j^nd the st^itute 
Jtias no operation uotil payment of the money ; con- 
sequently, so long as , the money remains unpaid, their 
right of dping away the feoffmenit by their disa^*eemejit^ 
is uot i^i ^ny di^gree con.troled. 

NOTE 118. p. 58. (0). 

Ap in the m^nds qf ,spme persons a doubt may arise, 
whether the ]:emftiuder to I. S. apd bi.^ heirs will coiiftiniie 
jjifter the disagreement ,of the infajit feoffee., j^ wel.l, , 
upon the ground pf the, infancy pf t^be feoffee^ as of 
the destruotioD qf the particulfir ^j^tp, i^t )^j^%^^yy 

C c 2 that 



196 NOTES AND EXPLANATIONS. 

■ 

that the editor should-^in endeavouring to assign the 
reason why the remainder is not devested— consider the 
case in two distinct points of view : first, as to the 
connection, between the in(B.nt mef eh/ in his character 
of feoffee to uses, and L S. as cestui qu^ use ; and 
secondly, in relation to the connection, between the 
infant a^ being the person to xvhom the particular estate 
in the icse is limited , and I. S, as having the remainder 
of the use expectant upon the determination of that 
particular estate. 

With respect to the first— supposing the infant in 
his character of tenant of the particular estate not to 
disagree, as the remainder in use to I. S. is not con- 
tingent, but capable of vesting immediately, it is 
immediately executed by the statute ; before the 
feoffee upon the ground of infi^ncy can set aside the 
feoffment ; and is so far a similar case to that of the 
use precedent spoken of in the last passage of the text, 
and in the last note, which see. 

And with respect to the second, namely, whether by 
the disagreement of the infant to whom the particular 
estate in the use is limited, the remainder over is 
devested? — it will be proper to enter a little into the 
difference betweeil limitations of the use of the land 
and limitations of the land itself ; but in the first place 
premising, that the infancy of the particular tenant is 
not upon this part of the case in any degree material. 
It is clear then, that in case of a limitation of land, if 
the particular estate was limited to one who refused to 
take it, or who was incapable of taking it, the remainder 
was void ; as if lands had been limited to A. for life, 
with remainder over in fee to I. S. or to a mc^nk for 
life with such remainder over, in one case, the re- 
mainder would be void by the refusal or disagreement 



NOTES AND EXPLANATIONS. 197 

• 

of A. ; in the other, by reason of the hicapacity of 
the monk. Plowd. 35, 83. Perk. 568. and 2 RolL 
Abr, 415. The reason, why the remainder is not 
good, is, that as by the rules of the common law no 
remainder of the land can take effect without livery of 
seisin be made to the particular tenant, (see Co. LitL^ 
49. a. 49. b.) it follows, that where the person to whom 
the particular estate is given, either refuses — or has 
not capacity— to accept livery of seisin, the remainder 
must necessarily be void. See Bro. Abr. tit. deo. 
pi. 14. But, if the remainder hath once vested by 
good title, then it cannot be destroyed by any sub- 
sequent disagreement of the particular tenant ; as if a 
lease be made |o an infant for life, the remainder in 
fee, and the infant at his full age disagree to the estate 
for life, yet the remainder is good. See Co. Litt. 
298. a. 

However, in cases of limitations in use, as the case 
put by Lord Bacon is, and of devises of the land, atU 
though the person to whom the particular estate is given 
is not capable or refuses, the remainder will be good 
notwithstanding. See Perk. 56'7. Bro. Abr. ubi. sup. 
Plowd. 414. 2 Roll. 415. Dyer 127. b. pi. 54. and 310; 
a. pi. 79, and 1 Rep. 101. 

The reader will perceive, that the ground of the 
remainders being void in the case of limitations of the 
land, viz. the want of livery of seisin to the particular 
tenant, does not apply to limitations in use and devises, 
because limitations in use and devises are not in the 
manner of their taking effect, governed by the rules 
of the common law, but are, on the contrary, con- 
strued by the judges according to the meaning of the 
parties. See 1 Rep. 101 

Whether, 



19$ NOTES AND EXPLANATIONS. 

Wbetber, in cose^ whe/'e the particultir ec»tate doe^ 
not take efieot| the estate aiid ifitefeft of th^ la-^ 
iDainder^man shall commence presently^ or^not until 
the tifne 13 run out for wbiob that particular estate 
wa^ to have continued^ are qp^ti^ns which depend 
upon the construction of the tern)s in which 3uch re^ 
mainderis may be couched* If the words ii^port, that 
the remainder is to vest in pgvssi^iQn upon the de* 
termination qf the fartiovlar estate^ th^n, if thsrf: 
estate doe$ not take effect^ th? remainder^man^s in- 
terest commences presently ; but if the words bstve ^ 
reference tp the expiratim of the time for which th^ 
particular estate is Jiimited to continue^ thpn^ although 
th^ particular estate shpuld fail, y^t the remaindjerr 
xnan^3 interest will oot cojoimence before that tipae 13 
run out) for exaiuple-^if ap use be Iwiu^d, or a de>- 
vise be, to A. for a term of twenty-four years, and 
then the remainder over, is by snch words ^& the 
fojlowij^, ai^d after the end pr expiration of th§ saii 
WJftM of twenty ^fmr years ^ (or ajtjy oth^r words, wbijrfi 
show that the dejbermination pf tbp legal iktj^&£$t 
wd not the time is li^kqani ;) th^n to anpljbi^ in fee ; if 
A« #hould be incapable of takings or sboujld refuse iip 
take, the term, the interest of the r0mai]:^rr;9ia^ 
c<\P¥»epces presently : but, if th^ wp/ds be, mid after 
the end or expiration of the ^aid twrnt^f-four y^oxs^ 
^iK> as to make it evident, that the ^xpira^tion of tjej^e 
llHj. and not the determpiation of the estate w^ 
meant;} then to another in fe^; the estate of there- 
maindw-man will not cossftmence until twenty-fo^r 
jears are ex|)ired by efflu^yon of time ; fg^ hj e^pres^ 
lunitation the use is aot ttp cpmi»ei]^e;tiU th^itperipd. 
See LordPagefs case, 1 Leo. iP4. I Mpor^ J9S. }Jtep» 
154. a^d see Gilberts Law of Uses 225, 226, and 227. 

In 



NOTES AND EXPLANATIONS. !0» 

In Lord Pagefs case, there was a diversity taken by 
Popham, Att. Get), and MtoWood Chief Baron, with 
respect to the coaimenoemeflt of the remainder*inaii^s 
inter^t^ between th& case of a feoffment to useci and 
^ covenant to stand seised, upon the ground, that in 
case of a covenant to stand seised, the considerations 
^ raising the different uses are sevwat-^ diversity 
which merits the reader's intention. 

With respect to the oommencefiient of the r»» 
nainder^naan's interest, see also supra p. IS. YtoT 
B'ook^ %! Hen. YL 36% and Fii%^ Ahr. tit* subpwnai 
pl« li 

NOTE 11^. p. 59. [p). 

Attainted persons can purchase for the benefit of thi» 
prown or the lord of the fee only ; but the law dqt]i 
not give the king his right, until office found : There«* 
fore, until the jury or inquest find the feoffee to uses 
guilty of felony, the statute has the same operaticHi as 
if the feofiee were an ini^ocent person ; but iniaiediate«> 
ly upon their finding such office, the king's title re*' 
lates back to the time of the feoffment, and as the 
attainted feoffee could only purchase for the benefit of 
the crown, the use is prevented. 

So if the feoffee be an alien — ^before office found the 
statute will execute the possession to cestui que me ; 
but if an inquesi: of office should be held to inquire 
into the fact of his being an alien and the office should 
be founds the king's title would relate back in like 
iwanner, and prevent the use. See Co. Litt. 2. b. 42. b. 
2 Black. 'Comm. 291. 3 Black. Comm, 253. and see 
ttie case 6i King and ^oysy J)yer 283. b. 

There are a few special cases where the King i is 
entitled without office, for which, s^ Co. Litt. 2. b. 
Pltmi. '229, 230. 

NOTE 



000 , NOTES AND EXPLA!NATIONS- 

NOTE 120. p. 59. (y.) 

The reason of the difference i$, that, as where the 
villein of a common person purchased land the latter 
had only the possibiliti/ of an estate before entry and 
inust have entered to gain an estate, the consequence 
was, that if thp villein had aliened before the entry of 
the lord— the lord would have being barred of the 
possibility which' he had to the land for ever ; (see Co. 
Litt. 1 18. a.) so, where the villein of a common person 
ixras enfeoffed to an use, the statute would immediately 
execute the possession to the use, and such an execu- 
tion would have had the same effect of preventing the 
lord from gaining his estate by entry, as an alienation 
by the villein himself. But in case of the king's vil- 
leins—inasmuch as where the villein aliened before the 
ting (upon an office found for him) had entered, yet as 
the king after joffice found would have had the land quia 
KtuUuvi temples occurrit regi ; (Co. LitL ubi. sup.) so 
where the king's villein was enfeoffed to all use, al- 
though the statute took the possession from the vil- 
lein and transfered it to cestui que use^ yet might the 
king after office found have entered upon the cestui que 
use, for the same reason that he might have entered upon 
£he alienee. 

Villeinage is now abolished. 

NOTE 121. p. 59. (r). 

Never riseth — In the other editions it is written 
neither riseth, and for want of a comma after the 
word statute, the passage in those editions seems to 
import, ths^ he was not in by the statute discharged 
of Jhe use, but by the common law; whereas th^ 

4 . author's 



\ 



l^tiES AND ^X^LAiJAf IONS; ^ 2(Ji 

author's meaning was, that as the use never arfees, the 
lord is in by the cdmmon law discharged of the use, 
and riot by the statute. '' 

NOTE 122'. p. 59; »i. 

In the case where ^ feoffinent was made to a villein; 
the land would be absolutely in the lord upon hi& 
entry; and where the lord was made-a feoffee to thfe 
use of 'his villein, be being by the feoffment irt pos- 
session, the use was as much incapable of raising, a^ 
where a man was enfeoffed to the use of himself; biit 
as the chattels real ^f the wife do not upon his being 
in possession of them, absolutely vest in the husband, 
although he may dispose of them ; and as he is only 
possessed in her right, and the term or legal interest 
continued in her; (see 1 Roll. Abr. 342. and au* 
thorities, Co. Litt. 351. a. and 1 Bac. Abr. 476. 5ed. 
in a note by the editor ;) and as they will belbttg to her 
in case she survives and • he has made no disposition 
of them*^the circumstance of the husband's being 
in possession by reason, oFhis having been made k 
feoffee to the use of his wife for years, does not prevent 
the use from arising, nor caus6 it to «nufe by way of, 
discharge; the statute, therefore, executes the pos- 
session to the use of this term in the sdme manner Ai 
if any other person than the husband had been made 
a feoflSee ; and consequently, the use vests in the wife 
in the first place, and then the statute carries tha 
term itself or legal interest to the use and vests it in 
her, when the husband becomes possessed 'pf it in hcr 
right and may if he thinks proper ditiposc t)f it; b£it 
. if he does not, the wife will have the term upon his 
death in the same manner as where a demise is made 
to her. 

i)d NOTE 



ao^ NOTES AND EXPLANATIONS. 

NOTE 123. p. 59. (0. 

Theking^s title to his year, day andnmsie, would 
not arise if the lord should hold discharged of the use ; 
and in order that it might not prevent his title from 
arising, the limitation of the use is considered good, 
and the feofFee in by the statute. For the reason wh j 
the king had the profits for a j^ear and day, and might 
cause waste to be made, unless the lord agreed with 
him for the redempticm of such waste. See SUmnf^ 
Prterog. 44, and Wrigkfs Tm^ loa 

NOTE 124. p. 59. {y). 

The word hut is not in the oth^ editions : it how^Ter 
appeared to the editor to be necessary.*— Lord Bacon 
is supposing a case whefe land is given to L S. for life, 
the remainder to the right h«rs of I. D. ; and that holAk 
the e$tate for Hfe and the remainder are to the use of 
I. N. and his heirs ; and then means toobserve, diat on 
account of the remainder to the h^rs of I. D. being in 
suspence, (for he can hare no hoir as lo^ as he lives, 
because, nemot est hares viveniisj L N. is not seised of 
the fee simple, but g£ an estate for the life of I. S» 
only till L D. be dead> (when the fee simple would b^ 
no longer in suspence) and then in fee simple.^— Indeed 
without the word but^ the passage had not any sense. 

It is to be observed also, that if L S. the particular 
tenant, should die before L D. the ccm&equence wou:ld 
be that I. N. the cestui ^[ue use could never have th^ 
fee ^mple ; because the contingent remainder to the 
right heirs tt h D. would be totally deftroyed, it not 
being capable of resting^ ait the time when the p&rti. 
cular estate i^ould detevBune., 

'4 NOTE 



NOTES AND EXPLANATIONS. 903 

NOTE 125. p, 59. (»)• 

Lord Bacoi\ here speaks of 'an eeka.te. for life la an 
use before the statute, from which it appeaiis certain^^ 
that an use might have been upon such an estate at 
common law. A modem writer however, asserts, that 
neither tenant for life nc»* years could stand seised be- 

« 

fore the statute eren to an express use, and he relies 
solely upon what was said in a case 24 Hen. VIIL 
which will be pres^stly referred to ; bi;t it will be con* 
tended in this note, not only, that no such conclttsioa 
is wanranted by that case, but, that the in£arenqe horn. 
what is there said, is in favour of the cwrtrary doc* 
trine; and, it will be contended also, that there are 
other cases which plainly proye, that there might have 
been an estate for life to an use before the fifeatute« In 
the case above alluded to, the question was, if tenant 
in tail should stand seised to the use of another? and 
lunongBt othCT arguments s^ainst it, the following ob« 
servations were made: ^^ Also heie is tenure between 
^^ the donor and donee, which is Consideration that the 
^' tenant in tail shall be seised to his own use ; and the 
^^ same law is, of tenant for term of yearsand tenant 
** /or term of tife^ there fealty is due, and xvhere rent 
** is reserved^ there, although an use shall be ex^ 
** pressed to the use of the donor xxt feoffor, yet it is 
'^ a consideration, that the donee or lessee shall have 
*^' it to his own use/* See Bre. Ahr. feoff. aU uses, pi. 
40. How an opinion, that tenant Tor life cannot be 
seised to an ex^nress use, can possibly be gathered from 
those words, the editor confesses that he is wholly at a 
loss to conceive ; for it appears to him, that it may be 
colleAed from the expre68ion,r— ' where rent is reserved, 
there althou^gh an use shall be expressed to the use of the 

P d 2 dopor 



/-•• 



20+ NOTES AND EXPftANATIONa. 

donor or feoffor, yet, &c.*— ffrst, that the lessee shall 
have it to his own use, if rent be reserved although an 
use shall be expressed to -the lessor ; and secondly, 
that if no rent be reserved, and an use be expressed to 
the use of the lessor, that the lessee for life shall not 
be seised to his own use, but to the use of him to whom 
the use is so expressed.-*-The Mdiole feems to favour 
the conclusion, that tenure is- a consideration that the 
lessee. for life or yeans shall have it to his own.use, ifiM 
use he deviated ^ as it is said in another place in Bro, 
same' tit. pi. :K). ^^ if the feoffee lease for life be shaH 
liave feaity, this shall be to the use of the lessee if aA 
usebetnrotjexpressly reserved.'' Now is it not a neces- 
sary inference, that if an use be expressly reserved, it 
shall not be to ihe lessee, but to the person tp whom it 
is so reserved? 

If tenure prevented an use from being by express 
limitation to any., other person than the less^ for li£^ 
himself, hdv^ do the advocates for that doctrine ac? 
pount for the execution of such uses by the statute 
at a period when tenure still, remained iu force? 
They t?ll us, -indeed, that such uses were mere 
confidences and irtists be£ore the statute, and that 
they are included under the words confidence and 
trust which the statute contains ; but it has been al« 
ready shewn in note 75, that the words t/^r, con-^ 
jfidencesnd trusty instead of relating to di£Perent things, 
were emploj^ed as convertible terms in speaking of the 
USE before the statute. The fact is, that although te- 
nure drew the use to the lessee, where the use was left 
to the construction ^f law, yet an use declared to an^ 
other upon the pstate of the lessee would have been good. 
Tbere is an observation -by Mr« Justice ManwQod, in 

- . firenff 



Jf OTES AND EXPLANATIONS. 205 

Srenfs case (see 2 Leo. 16.) which is directly to the 
purpose-^* ^ a leaso *for life, is mad^ to another use, 
yeC notwithstanding that the law doth creQ.te a tenure 
upon thfe lease, yet the use cvpressed shall be good* 

That uses might have been upon estates for iif^ 
end for years before the statute, is evident, from thq 
statute 1 1 Hen. VI. c. 5. whi(?h was made for the relief 
of hini in^ remainder against particular tenants for lives i 
jor years, who assigned over their estates and took thq , 
profits, and then committed waste; and this statute 
bath been in a former page spoken of by Lord BacoD| 
as relating to iLse^s. See supra, p. 27. 

In a case, in the 2 and 3 of Elizabeth Y-Oj/<?^> 186. 
^). of a. gift of land to tWo for their lives to the use of 
another, a query wi^s made, as to whether the con- 
sequences would have been the same had the gift beea 
made before the statute? which was admitting that 
there might have been such estates to uses, before th^ 
statute. 

From Crawkjfs case also, it appears, that there 
. might have been an use on an estate for life before the 
statute — ^^ If one grant rent to two," says the case, 
^* without more words, to the use of a feme before the 
statute 27 Hen. VIII. the grantees have an estate ia 
the rent during their lives to the use of the feme^ See 
a And. 130. Cro. Eliz, 721. 

There was nothing therefore incorrect in Lord.Ba« 
con's putting the case of an estate for life to an use be- 
fore the statute. It is said in the books, tliat the statute 
0nly executes what were good uses before the statute. ' 
Now, it is clear, that uses on estates for life, are, at 
4his day executed by the statute: if, then, as some 
have said, there were no such uses before the statute, 
jd^re would be a variance between the doctrine lajd 

down 



SOS NOTES AND EXPLANATIONS. 

<Jown in the books with respect totheoperaftioiioftbft 
statute and' the actual operation of it, artd ia ord^ to 
Jkvoid this contradietion, the writ?er alluded to, has 
found it necessary to create an exception of use* 6r 
estates for life, out of the rule, that these rises only are 
executed hy the statute which were good uses before the 
statute ; but the cases which have been referred to 
as proving this exception, so far from even. intimating 
any thing of the kind, do some of them afford a cpn- 
elosion, that there might have been an estate for life to 
the use of another before the statute ; for example, the 
above cited case in Djt^er and Crcewley^s case : and the 
truth is, that the rule as laid down in the books has no 
exception (see 2 Roll. 780.) nor can it need one, because, 
it 13 certain, from the cases above quoted, that there 
ntight have been an estate for life to an use before the 
statute ; and that being so, all that is to be found in the 
books on the subject harmonises. 

NOTE 126. p. 59, (w). 

By altering the punctuation in this place the whoI# 
is rendered intelligible. In the other editions it is in 
this manner — " the use is not executed out of the free^ 
hold in suspence for the occupant, th^ disseisor, the 
lord by escheat. The feoffee,** &c. It was evidently 
requisite, that the period should end with the word 
suspence^ and the next sentence commence with the 
word fori because the occupant, disseisor^ and feoffee 
upon consideration without notice, are all in the same 
class ; and it was therefore our author's intention to 
refer them to the same division of his work* He has 
already considered, who should be seised to uses in 
regard of their persons ; and having afterwards to in- 
quire, who should be seised to uses in regard of their 

titles, 



NOTES AND EXPLANATIONS. 207 

titles, he i::efers his reader for the cases of the occupa,nty 
the disseisor^ &c. and all others in that class, to another 
division of his work, mentioned in p. 5^ ; but ivhich 
&, howeveir, unfortunately lost, see note 145. 

NOTE 127. p. 60. (r/). 

The words and it are not in the other editions, and 
without them the passage carries the meaning— -that 
nothing more is requisite to the vesting of the us^, 
than, that the deed of covenant should be enrolled and 
the feoffment be found by office; which would be in- 
correct ; for the deed and feoffment must both be en^- 
, rolled and both be found by office. Lord Bacon him- 
self says just before, it behoveth ^botk to be by con- 
veyance of record, because, the king's title is cou^^ 
pounded of both ; and he puts the case of a covenaat 
not enrolled, but found by office, as an example, thtt^, 
although the covenant is appearing of record in con- 
sequence of its having been found by office, yet the 
use does not vest ; because, not being by enrolment 
it is not by matter of record, and for the same reason, 
the mere finding of the feoffment by office, without 
enrolment, is not sufficient: and both the covenant 
and declaration must be found by office, for it is 
against the policy of the law to permit the kin|^ ta 
take. Until the grounds of his claim have been found 
by a jury. The words and it were therefore necessary 
to show, that the whole matter, viz. the enrolment, 
not only of the covenant, but of the feoffment also^ 
was to be found by office. 

NOTE l28. p. 60. {z). 

The fine and recovery being assurances by matter 
<tf record, and therefore not requiring any enrolment 
like a feoffment. 

NOTE 



\ 



508 NOTES AND EXPLANATIONS- 

NOTE 129, p. 60. {a). 

It was not material M'ben Lord Baqpn wrote ; but 
now in consequence of the statute 29 Car. 11. c. 3* 
the feoffment and declaration must be both in writing- 
See note 20. 

NOTE 130. p. 61. (i). 

The remainder in use to the right heirs of I. D. U 
a good contingent remainder, although the preceding 
term of years in I. S. is not competent to its support.^— 
If the use of the term had been declared to the feoffor 
Bimself, the remainder in use to the right heirs of 
L D. would have been void as a contingent rernainder,*^ 
And being void as a contingent remainder, it would^ 
bad it bew limited per verba de futuroj have taken 
effect by way of a future or springing use ; but, being 
limited per verba de prasenti^ it would not have been 
a good future or springing use, if it had failed of 
effect as a contingent remainder. < 

It is intended to offer a few observations in support 
of— and to give the reason of the law with respect to 
—the above propositions ; and first— where, as in the 
above case stated by our author, the use for years is 
not limited to the feoffor himself, the remainder would 
be a i^ood contingent remainder ; because it would be 
supported by the estate of freehold which would m 
sucli a case result to the feoffor for his life by implica- 
tion; as in the case oi Penhay v. Hurrell, 2 Fern* 
370. a conveyance was made to A. to the use of 
trustees for 70 years, if A. should live so long; re- 
mainder to the use of trustees for 3000 years; and 
from and after the death of A. to the use of B. hi» son 
for life; with divers remainders over; the objection 

was^ 



NOTES AND EX>LANATI0NS; ii09 

Ti^s, that the limitation to B. together With the re« 
tnainders oVer were void, being ah estate df freehold 
to commence in ftUaro ; for that the first freehold 
estate was limited to B. which was not to arise until 
the death of A. and no estate for life was limited to 
A. unless an estate for life should be supposed to 
result back to him ; but, after solemn argument upoii 
the point, and a case stated to the judges, it was hetd^ 
that an estate for Ufe resulted to A. which supported 
the limitations over. See Feame*s Cont. Rem. 27, 50; 
4 ed. and see the case of J^^'iw^ v. Mitford, 1 Fentr. 
372. Upon the same ground therefore, that the r^ 
mainder to B. in the- case of Penhay v. Hurrell was 
good, is the limitation to the right heirs of I. D. in the 
case stated by our author, good also. 

Secondly — if tlie use for the term had been declared 
to the feoffor hhnself^ the remainder to the right heirs 
of I. D. would as a contingent remainder have been, 
void.'^n a case in the 34 and 35 of Elizabeth, — atid 
which, as far as it concerns our present purpose, was 
as follows, Francis, Earl of Bedford| enfeofied certain 
persons in fee, to the use of himself for years, with 
remainder to the use of the right heirs of the Earl;— • 
it was agreed, that the remainder to the right heihi 
could not be supported by the estate for years, for,that 
it ought to be a freehold at least to preserve such a 
remaind^ : and they said, that at that day, they did 
'i»ot think there was any diversity, between the case of 
4 remainder iti possession limited to the right heir fd 
one, and of a remainder in use so limited over to 
another^ Set Poph. 3, 82. and iioore 718. S& in 
the case of Ad^ms v. iS'avjj'e,— where^ by a lease and 
veleaae A. conveyed in fee to trustees, to the use of 
kimself for ^ety '^nj^ne yearis \ reiMifideri to the use of 
tvrttstficw for twtnty-fivo years \ ftifiainder to the heirs 



/ 
/ 



?xale of ^p,bo4y of A'l rQi9aind«r> tp, bM cwa rigfef 
^J^s;-*it wa§ b^, (hat the Uj^iti^tion to thoh^irs mate 
9^ the body of A* w^9. void, bejCaiMift there Wft« noji a pr©« 
Meeting ^Ital^ of friej^old liwteid . to support it. Sm 
2 SalA. 619. Aod ia th& casa of Davies and Sp^^^ 
% Salki 675. dod Rawlty.\, Holland f diced Feamd!^ 
Cant, Rem. 5 L« 4 ed. the saous doctiine 'v$ hdd : and 
^ the first and ls$t cf those thiiee cas^, tbse cpurtt 
said^.tbatno estate of fiieeb<dd could result to A. &r 
his life by implication ; because anQtheiLes£ate^ idz. foe 
ninety ^nineye^is, was e»i^sBly limited to him, whiab 
would be inconsistent with a freehold by imiplication^ 
it is almost superfiuous to c^setve, thai although, a 
term be not limited to the grantor, yet, if the fittee« 
hold be limited away to anpther, as to G. £Dr instance^ 
k cannot result to the grantor, Tippinw, C^sin^ ^Mifd. 
dSO.; and, that in such a case the i^emainder woi^Jd be 
supported, by the fveehold in G« 
. We are now. coma to. by £ar the most difficidfrpoiiily 
which wa]^ proposed to be discussed in this note; viz. 
the distioctipn, bet^ween Umitationsj^rr v^ria depra^enti 
9Xid*per verjka de fuiur^j in-order to th^ir taking effect 
as springing uses, in cases, where, as contingent rer- 
itaamder^ they are void; but, before that distinction ift 
gone into, it will < be the better plan tp- submit tathe 
iseader's consideration, the peason^ for thinhing, that 
the courts, would at this day^ consj^ue such limitations^ 
iti-u^ to be good<spi:itigiBg use^y provided they aresa 
tiorded as to admit of such constniction^r— l^et u». 
therefore su|^osey that A^ etife^b B«^ to the use o^ Ai 
the feoffor^ fdlr twenty years, wi& remainder ia fee 
cif the use, to such son of A^^as shall be first bom; oiv 
witb remainder; to the rigl^ heirs of L Si after tiie^diathL 
H-' L 8^ Now, it is perfeetly^ clear,, tiiat before: ik» 



e 



NOTES AND fcXPl AN AtlbM , iii 

ISsAxOt those use^ ill reyaiiidei*, aiid i»a^ iis^^ Hfalitea 
to da-lse at afly pmhr diihifi^ «iF tihifej hd^ev^i- i*- 
%d€b> would haVe bead *gob(i sprihgltig uses, tt is alisb 
-perfectly clear, Ihit suet remdindfer^ of the lalid wbuFd 
M¥fe h^en tbtdlly roid, being 6f frefehdW^ tb cbtilhieiice 
infuturo. Whfen, tHferefdrfej the statbte 27 fifeh. VIH, 
-fc. 10. cdiile and caused the land to be itlenddnt upon 
the use, the cohseqiieiice would have b'een, kHkt, tffe 
i'Ule against st frefehold being limited to eonidien<5e in 
futurt>j and the other riiles relating to Ihe Isltld; would 
have befeh iinderhiined if the judges Had not ihtBtfered, 
t^6 rtote I3l. R is h5t tb bfe wbnderetl dt^ theri, that 
the judges in the above cited cstse of the EarVof 6eS^ 
fordf and in CHudleigh*^ casfei should have held, ih 
oppbsitiofa to the strict ^i-ihciples of tises, that limitar 
tioni in use in remainder should be void, ih th6se cases 
iirhere common law reitiainders wouM be so ; bcc&usd, 
as the littiit^ fbr ihh vesting of e^tectiiory dfevisfes and 
for the rise of future uses were not then fixed— to havfe 
permitted ftrture uses to take eflfect in the same raarihei' 
after the statirte -as they had done before, ^ould.have 
established perpetuities j against ^hich it fras the policy 
of thfe cominoft law to • guard : But now — when e^^^^ 
cuto'ry devises of the lapd itself are permitted to tak6 
effect, provided they vest within certain limits which 
preclude the fear of a perpetuity, that is 21 years, and 
the period of gestation ttt^r a life ot lives in being- 
there can be no r^asoh, ivhy such uses as those limited 
to the eldest son of A. and to the hteirs of I. S. in the 
tases above supposed, should not, although void Bi 
remainders, be allowed to take eflfect as springing uses j 
Seeing, that thfe^ must arise within the above b^utids, 
if they do at all, and therefor*^ pb dangcii^ 6f a j!>6r- 
petuity: and li^pou thS^ strengtb of wh?tt H6K s^id in 

Pe? the 



a\2 NOTE§ AND EXPLANATIONS. 

the case of Datries v. Speedy 12 Mod. 3d. that a bar* 
gain and sale to the use of another five years hence, 
or feoffment to the use of the right heirs of I. S. after 
the death of I. S. are good future uses^ it seems re« 
asonable to suppose, that, as future or springing uses, 
the courts would at this day give them e^ct. 

JViiA respect to the distinction between limitations in 
t^e^ per verba de pnesenti and per verba de futuro.— .- 
From the dicta of Holt in the case of Davies v. Speed 
just now quoted, Mr. Fearne seems to have imbibed an 
opinion, that incase of a conveyance to the use of C. foir 
ninety-nine year^, with remainder in use to the heirs male 
of thd body of A. ; such remainder, although limited per 
Derba de pnesenti ^ould be capable of taking effect as 
a future use; and, that it would be within the reason 
of the cases put by Holt, to give it effect as such. 
(See Feame^s Cont. Rem. 428 ed. sup.) but it does not 
app^r to me, that they warrant any such concliision ; 
for, it is to be observed, that in the cases put by Holt 
jtbe future uses ar'e all limited in terms de future , as 
it stands with reason that they ought to be ; whereas, 
in the case alluded to by Mr. Fearne, the remainder 
to the heirs male of A. is per verba de prasenti; so 
that, taking it as a future or springing use— -as being 
unconnected with, and independant of, any preceding 
estate-77it must necessarily be a void limitation ; as 
much so, as a limitation would be^ to one who had 
been for years in his grave.— It is not a limitation to 
one, who shall at a future period answer the given 
description, as the case put by Holt is, viz. to the 
right heirs of I. S. after the death of I. S. by which 
time it will be ascertained itvho that heir is, but it & a 
limitation . to one as if actually in existence when in 
fact there is no such person.— By the terms of th^ 

limitation 



NOTES AND EXPLANATIONS; 21S 

limitation, the estate is to vest in interest immediately ; 
but tbere is no person in wbom it can so vest.— All 
this is capable of being explained, by what was. said 
by Holt with respect to executory devises* in the case 
of Goodright against Cornishy 12 Mod. 52, 53. for, 
the analogy between the learning of executory devises 
and future uses is so very close, that what serves tQ 
9xplain the one, does also at the same time, tend to 
elucidate the otiier. In the last mentioned case, a 
testator devised to his son J. for 50 years, if the saidi 
J. should so long live ; arid after the determination of 
the said term, then to the heirs male of the said J. ; 
and there,. Holt said, that ^* the remainder limited by 
the devise to the heirs of the body of J, was void, hav- 
ing no freehold to support it ; and, that, per verba de 
^rasenti one could not devise an estate to the heir of 
one living; but per verba defuturo one may; viz. to 
the heirs of I. S. after the death of I., S. and this shall 
enure as an executory devise.^' And he said also, that 
'^ this was not an executory devise to the heir of the 
body of J. it being limited expressly as.a remainder*** 
Now, the same reason for the inefficacy of the limita- 
tion to the heir of the body of J. in the case of the 
executory devise last mentioned, applies with equal 
force to prove, that the limitation to. the heirs male of 
the body of A. in the case of the use, was not capable 
of taking effect by way of springing use. And it is 
worthy of remark, that Holt puts the same case, as 
well with respect to executory devises as springing 
uses, and in words defuturo^-^to the heirs of I. S. after 
the death of I. S. Holts opinion therefore (and it wa:$ 
solely upon the opinion of Holt, that Mr. Fearne re^ 
^ied,} mu^t have been, that such a limitation as that 

to 



VH NOTES AND EXPLANATIONS. 

to the bars male of the body of A. in the case alluded 
to by Mr. Fteamc -was void ; being, per verba de pne- 
Menii, and consequently, that genttematiV conclusioh 
was not warrantee^ 

The reader will fiiid cases in addition to the above 
case of Goodright against Cornish, which strongly 
favotft the conclusion, that executory derisei^ ami 
f^rlnging uses cannot tak^ efieet as such, unless limited 
per verba de/uturo ; as the cases of Moore v. Parker ^ 
I Jjyrd Raymond 37. ^Mod^ 316. Goodman t. G^d-^ 
right J 2 Burr. 873. and Scatttrgood v. JSdge^ 1 2 Mod. 
S7d. 1 Sulk, 229. , Indeed the last mentioned cas^ 
IS e3ipress upon the point, as we shall piresently s^e« 

Mr. Feame has endeavoured to diow by some recent 
tases, that the distinction between an executory Umita^ 
tk>n to a person not in esse^ i^hen made per vetba de 
pntsentiy and when made per verba d€ futuro, is |(o 
ledger attended to, (see Feame^s Et. Dev. 144. and 
from 506 to 511. 4 ed. ) The editor, however, cannot 
think, that that gentleman's attempt hath been sue- 
eessful > for it is to be observed in the first pSaee, that 
it may be collected from the -cases cited by Mm, thift 
«Mio»gb tiie limitations werd per verba de pntsenti, 
yet the intention of the testator was future ; arnd the 
intention being future, the inference is, that the testator 
had n^t in his contemplation, the perscm who should 
^ trhd time of his dearth answef th^ description mention^ 
«d in the limitation ; but, the person' who should anr- 
^Wer such descriptit!>n at the fotui<e period to.whick hfe 
aiiudeis ; and, that he did Hot fti'ean, that the estate so 
limiled should ve^ itnmedi'ately upoii his death ; but 
wh6n tJmt future period should arrive; and consequent* 
ly, there does appear to have been sufficient reason for 
giving effect to limitations where Me iiitention is future; 

and 



NOTES ANO EXPLANATIONS^ ati 

md ths^ly wtthctttt in the kast questioning the accuriGy 
of the difltinction taken by Hok and odiers befcireea 
^rba de pr0<senii apd verba de future. 

It seems to the editor, that the mfy questksn to b# 
CQn^dered ifl such cases, is^ whether the ratention of 
t^e ^sUtor be future or not ?-«-Exeoiitory devises and 
f^ripgiing' wcs deriv.e their legial essence from the intent 
^on; and> consequently, are regulated by that intent 
^OQ, wheoeyec it is apparent ; so f ai* at least, a» thai 
b^ h^tb giyen it a range* Powel, justice, in Scaiter^ 
^o(f y« Ed^c^ cited above, said) '^ the rule i», thai 
wlu^Q by the words of th& devisor it apparent^ is 
4^gn$dr foft siftUure interest or devise, it is. good.*' 

If the intention be foture^-^ti^^tjier the vfotd^ of 
JKoditatum make it; so, or, wbethes it is^ to be ooHected 
ffitOk cdier matter in the willi-««4ihere oaa be no rooiq 
iffr conl^nding., thaft it must take effect and vest at all 
«ii;ent9| upon the- death of the testator if ataU; buty 
91) thet contrary, it will be> sufficient, should it b« 
f afi^bl^of taking effect and vesting at the foture time 
"(Kbich die* testator had' in view. If pcesent^r-Kis-wl^re 
be limittin tecms.2*»L.pr4e«ait^i^ and there* is' nothing ii» 
^qy part of the will from» wbenoe it can- be inferredy 
tiiat) die indention. woaa othenfise f^an present— the con* 
cJiusiQn.is^ that the testator ii^tendedtbat the limitation^ 
should: take/ effi^ct andivest in the per^K>n* described' by* 
it pce^ently upon his, deatb; and if at t^iat time^ them 
i|^ UQ such pesBon in. existence, such limitation raus^ 
oecieiss^y.fail of eflbct. £br» want of a person to take 
it* WhaUpossible reason- can there be, for supposing, 
that the tesijator. meant an. ejxcutary de^i^, wbeo' 
9VQ17 thing inthewiiliiEi^ourS' the opinion, that? it was 
W^iUUi to. t8k^:6ffsct presently. ? In a demise totheiirst? 
4CfeA o£ L & Mcbofaas no svn at the time, noqp can^tell^ 
^^\ . ^ by 



316 ' NOTES AND EXPLANATIONS; 

by the words of the devisor, said Powel, justice, in the 
last mentioned case^ Mijiether he meant it should take 
presently or futurely ; and therefore, it is no more than 
a present devise to a person not in esse. 

Mr. Fearne, also, in opposing the distinction, bath, 
tefused to allow to the authorhy on the other side ltd 
due weight; for he hath represented (see Fearne*s Ex. 
Dev. 50^. ed« sup.) the sentiments of the court in the 
aforesaid case of Goodright v. Cornish^ upon the 
question whether the devise to the heirs male of the 
body of John was in that case an executory devise, to 
have only seemed to incline to the opinion, that it was 
not an executory devise ; and it must be acknowledged, 
that, in the abridgment of that case in Scdkeldj upon 
which authority Mr. Fearne relies, it is not said 
positively, that the court did not think it an executory 
devise, but that they seemed to think it not so. It is 
certain, however, that the opinion of the court was 
express y that it was not an executory devise ; for, iit 
the very report to which Salkeld himself refers (1 Lord 
Baym, 3.) it is said, that it was adjudged that 
ibis limitation to the heirs male of John, was not an 
executory devise, but a plain contingent remainder j 
and) that it was ill because there was no freehold to 
support it: And according to 12 Mod. 52, 33. which 
contains the fullest report of the case, it was said by 
Holt Chief Justice in that case, that per *oerha de 
prasenti one could not devise an estate to the heir of 
one living, but per verba de futuro one may, as it 
hath beien observed above: And, that this was not an 
executory devise to the heir of the body of J. 

It is admitted, that the judgment did not rest upon 
the point of its being good or not, but, with respect 
to the opinion of the court^. and to what the decisioii 

4 would 



NOTES AND EXPLANATiOTJiTS. ai7 

would hare been, had the Judgment T^^ ^S!l?ilt^^^^ 
pointy there caimot be two opinioDs,!,9,ft^r j]^^t)}{^^ 
Baypdond has said, but thai the xlqcisipn;\f0^i^4-^^aye 
]:)een9 that the limitation being^ per verba deip^tefffifi, 
was not good, as i\n executoiy devise. • : '•: ^' f ' > 
Mr. Fearne also says, that he has nqt found any case 
determined upon tbe distinction between verba depr^^ 
senti and verba ^e future ; and, tha( the case of Scatter-^ 
good V. Edge did not decide the point, that a limita« 
tion per vejf'ba de^pnesenti would be void as an executory 
devise. See jF!e^(ixne*s Ex. Dev. 504, 505.. ed. aup. But 
the editor qoipqeives, that. the point Tie;^?^ | decicted bjr 
that very C9se^ and jthat, if Mr. Fearne had consulted 
the full report of the case in the Modem Reports^ 
where the arguments of tbe judges arc given at lengthy 
instead of the abridgment of it in Salkeld^ it is pro- 
bable that he would have been of the same opinion* 
That case wa^— to state it in as brief a manner as pos-^ 
sible^ — a devise to a trustee for eleven years, and then 
to the issue male of Greorge. Jakes; and if he should 
die without issue male, then to the issue male of George 
Convoy. Jakes had no issue at the time of the devise^ 
and di^d without issue : Convoy had issue at the time 
of the devise, who, upon tbe expiration of tbe term 
of years, entered. The judges delivered their opinionsi 
ieriatim upon the case ; and the only question was^ 
which of tbe two devises^ viz. that to the fii^t issue 
of George Jakes he having no issue at the time, or^ 
that to the first issue of George Convoy who had issue-^ 
should stand ; for they were incoiiipatible and Could not 
J;;oth subsist? And it was moved and admitted, that the 
.ji^ase ought to be considered, as if the contest were 
between the ^issues of Jakes and Convoy. If the devisei 
to the first issue of Jakes was void, then the devise to 

Ff the 



71% NOTiis ANi> Explanations. 

the ^iflSfi'' c^F'tTohtoy was good ; but, if \he former 
ifHftie?^'* '-gdddi them thfe ktter devise Mr3S void.*^ 
BlAWfcb\i^if, Jtistice, held the devise to the issue of 
. ^fe!&'^o-Be good ; and coni^qtiently, that by the rule 
of CTOCutory devises, tte devise to the issue of Convo]^ 
cotdd ndt pAissibly b6 good : he admitted, that, if the 
intent ^as by flie first devise to pa^ a preseiit interest. 
It would be void, because there was hone in esse to 
take it ; and then, Ibe Second would be good : btit h^ 
lonceJv^d, that the tcrstator intended it'as art lexecutoiy 
ifevise, and that it \^as therefore gbod. Poy^kLt, 
Juistfcfe, «iid, in addition to what hath \seeh noticed 
tibove, ^it ft seemed plain, iJiat the ttevfedr intfendei 
tliat the i^sue of Jakes should be jiretered ; but hfe 
Conceived such intent was inconsistent with the rultfe 
'of law ; fbr it could ribt be, but by way of i^ecutbry 
'devise, and that Wdtild not do as that cUse stood. And 
again, in the saitie Argument, and with a direct ap* 
^plidation to the case, PoVeB siaid, " 'I for a long timt? 
fciVeb^eii of opitiion,.'that this being after the term 
%r eWveti ^rears Would fife a good Ijxecutory devisie to 
*ttie issue bf'-Gebi^e Jakes; but upon gileat considera- , 
4:ion, I hold it riought now.*'— NeviiLle, justice, said 
*tbat it wis plainly a present devise to the issue of 
<J^riorge Jakes, and therefore vend, there being none 
'^'e^e; and theh the secorid devise * to the issue of 
'^G^orgeConVoy'i&goodi-i-TREBY, Chief Justice, said, 
'lierfe ftie itetie of George Jakes could riot take p>resetatfy, 
"Because hot in being ; rior futurely by way of executory 
d^vifee, 'because the devise is in 'oerbis depra^entt*, tilid 
' theref6re he cbuld not take at all, and then the seeded 
"demise is gobd. Tr6by , farther said, ivhei^e, hf tiJe 

■ 

words of ^e "wiM it appears a pf eseJnt de^rise was In- 
tended, it 'ought not %o be Tadier construed in execti- 

tory 



tqty ofxe^ . thpn the vill ?hou}4 ^^ frijstr^ted j ^nd^ foy 
tMt, devige to tb? right heirs of I. S. who is ii> full 
^fe, shj^ll nQt. be iwde good, Set^ [^Mfd. g7§. 7J^9?^ 
. then it ^ppeaf3., that it was 4ec]de(l, by a niajority of 
three judg^ fig^inst the ppiniMn of JflenCo\frej tha| 
the Umitajtioq to the fir§t issue pf Jakes was voi4 ^s an 
executory devise, being; per verba de prifsaiti ; a^dit 
^ppe^s also, th^t Blepcpwe would like\yise have gqn- 
^dered it void, if bp had not thqught t^ere was suf- 
ficient matter frQtn whence to infer, that the intention 
of the testator ^ith respiect to tha|t linlitatipn, was future, 
^Thp distijiction therefore, between limitations .'jp^r 
v^ba de pnesmti ^nd p^v^ 'uerba de fytura, is, upoj^i 
thestreftgtb of a^d^rect decijsipu respecting it, substaotiaJ^^ 
Mir, Fe^^e, however,, i^ di§cu§§in^ the pqint. whether 
9^ davisje per verba 4e ffj-ffenti ^Ijiali take efFect .q^ |n 
executory devise^ ^hea b^nqti^cjed the la^t menti(pned 
oa^ pf Siaf,ttergppd y\ ffdfej ^s&c\ed^ that ^^nc^e , B, 

jin /eyeat whatjBver it ^fas, j^pi jts creatipr^; and J:]iat Ijie 
<;herefoi^ ^pprehen^e^, the judgment ^did^not decicje 
that point (See Fearne^s Ex. Dev. 504. ^d, sup J But 
in answer to lyir. Fjearne, it jvill be surficient tp evii^ce. 
if)3X^ w.hether it be^came void m event or not. was 
totally iinpiateriaj ; ?kPd^ Jthat l^he j^ply question in tbp 
^ase, was,^ vhethe.r it, w^s^,^'^ ,va^*^'pot,^^oo^^^^ in its 
first creftti9,n ( No^^ nc^ofik^ t]^' '^^^ thpu^^tit 
;pieq^sary. JjP cpn§ider>: i^^hat .t^e eve^ ovu t^ 

^contrary, tl^^c^se i^a^^^^rg^ed b^e^h of .tlj^^^ upon 
.^e yaUditj of the^dev^Vf<?.t^^^^^ Qeprge ,J^kes 

i% the first instance : for upon the vaKdity or invalidity 
of that j(?.eyise^, (^id th^ w^ol^ ^as,? tuR^ : Uji v^ jjoo^, 
th^Q the devise to the issue gf Convoy, the defendant, 
.w^yoifl^i^uf,^/ tl^ieii^to^^e^sue,9£; Jakes w^ 

Ff 3 'void, 



920 NbTES AND EXPLANATIOKSJ 

yoia,' then the devise to the issue of Convoy was 
good. "Nay, so far were they from regarding the 
event of the death of Jjikes without issue asbeibgof 
any consequence, that it was moved and admitted, as 
tefore observed, that the case ought to be considered, 
as if the question had been between the issue of Jakes 
on the one side, and the issue of Convoy on the other ; 
^nd it was not possible to place the case in a better point 
of view^ i\oi inerely, for the purp6se of examining, 
the merits of that particular case, but also, of putting 
to the' test the general doctrine, whether a devise pet 
verba de prasenti to one not in esse, was capable of 
taking effect, by way of executory devise? Indeed^ 
with respedt to any difference which the event might 
occasion ^"it was expressly sdid by Bleucowe, justice, 
'if this^e a jgood deyisie t6 the issue of George Jakes 
T)y Ihe' pHt constiiuiion tfifre^h it cannot be vitiated 
'by mattef ex ^(35/ ya^/d.-^Tne judgment of the court, 
tnerefore"^ m the ^Cdse 6t '^dattergood v. Edge, went 
qirecliy to Vfecide thd point, that a devise per verba 
de praEsenti, to a person Tiot tn being , ts not a good 
execmorjj devise. 

*^^ There is' aiibth^r' point fnfmediately relating to the 

subject' * under ' iiivestigati on , upon which i the editor 

"i9 CQmpelled to dmef from Mi". Feame.— ^That geritle- 

'jhan 6bseVie§,^tbat' *f ^b'eibre the statute of uses, if 

"" there had loedn a feoffment to the iisfe of A. for years, 

"femainder (of the use) iri'contiingency, thecbhtineent 

use, would have oeen epod, for the feoffees I'emamed 

tepaHts'of the legal freehold ; but that since the statute 

it is otherwise, for now no estate remains in the 

es 

Savage y where the tise fpr years was liifiited to the 
\ grantor 



NOTES AND EXPLANATIONS. 5r21 

grantor himself. Now, what the editor thinks in-» 
correct, is, the opinion, that no estate remains in the 
feoffees since the statute; for if it be true, then the 
freehold may be In abeyance for an age, a century, or 
any other given time. Suppose, for example, that 
A. makes a feoffment to the use of himself for years; 
with a remainder over of the use in contingency, to 
the right heirs of I. S. after the death of I. S.— it is 
certain from the above cases of Adams v. Savage j and 
jRawtej/ v. Hollandy that the freehold w6uid not result 
to A. ; nor would it be executed to the use limited to 
the right heirs of L S ; and, unless the freehold should 
be construed to be in the feoffees, there could be no 
pracipe brought for the land during the term, and all the 
other i neon veniences of the suspence of the freehold would 
ensue: but it is not an idea to be entertained for a 
moment, that any such thing would be suffered, for it 
is a ground of law, that a freehold cannot be in suspenoCi 
as observed, sup. SB. In fact, it is to prevent this 
suspence of the freehold^ that it cannot at common 
law be limited to commence in future y and that >a 
estate! for years is not capable of supporting a con* 
ting^nt remainder amounting to a freehold ; and thus 
it is, that an executory devise by which the freehold is 
not limited to vest in the devisee until a future period, 
is good, by recwn that the freehold descends to and 
yests in the heir in the mean* time (see Pd2/*s case, 
Cro. Eliz. SIS.) 

Rather than suffer the inconveniences of a suspence 
of the freehold to take place, the courts would, it is 
conceived, hold such a limitation as that to the right 
heirs of L S. in the supposed case to be void ; and then 
the remainder of the use would revert to the feoflbr as 
in the Earl of £ledford*s case, see Moore, 118 — ^721 ; 
^ in 



/ 



m NOTES AND EXPLANATIONS. 

in which event the term would merge in the rev«r$io(i, 
and the feoffment thereby become nugsktcvry. But, v\ 
opposition to Mr. Fearoe^s doctriiia, it i« contended by 
the editor, that in cases similar to the one under consl^ 
deration, the freehold of the land does after the «tat|tt<i 
remain in the feoffees, pending the contingency ; %^ i^ 
tiot in suspeuce ; and consequently, ^at the limitation 
to the right heirs of I. S. would be ^ good sfpringipg 
ti«e* It is clear that at common law the f^ ^is^pl^ 
piu»e(5 absplbtely to the feoffees* It i9 alao ^l^r that 
the statute of uses take^ not any estate from the feofl^, 
unless wh^e there is at the $ame time cestui fue wif in 
esse, to whose use $i}ch estate can be es^ci^ted ; f^ th^ 
^irords of the statute are * where apy person or pecKHl^ 
are seised to the use of any other person or per^nj^,' 
&c. See Note 89, and the authpriti^ there refeir^ ^• 
Then, as in the supposed case tbe only person in es^f 
to whom an use i^ limited, is tbe feoffor iumself, wlw> 
takes a term for years in the use— tlje statute cm only 
taiat from the feoffees so mudb of their estate as wiU 
suj^y that use for years with tbe possession ( Init with 
jnespeet to the contingent »se in fee mmple to ti^ 
sight heirs <6f L S., .nothing is taken from tbe^soflSbes 
and executed to that use ; because there is no Gts^ui qt^ 
me in esse in whom it jcan be executed, for nemo ent 
ikares vhentisi and tbe consequence is, that the free- 
jboU and inheritance, which passed to the feoffees by 
the feoffment, not being, until the happening jof . Cbe 
'Contingency, touched by the statute, mxist remaiia in 
d3iem as^at comsion law, .subject to be taken from .them 
hj the openution of the siteiiiut^, and executed to tbe 
-use when the coatingency shail ha^jpeD. And ithis rea- 
asDoiflDg m backed by indisptitable authority; for it was 
expressly held by the it\»o Chief Justices tao^d >&ix of the 
. ■ ' * other 



l^OtES AND EXPLANATIONS. ^$ 

other ju^ices etid tatons in Chtidkigk*s x:zsey ^at'this 
tiause (viz. the clatise which directs, that * the estate of 
iht feoSee^ s^all be in such person who hath the use*) 
^oth not divest any estate oat of the feoffees, but ^svhen 
it csm be executed in the cestui qtte use : and the eight 
justices and barons further said, that by this clause it 
also appears, that no estate of the feoffees shall be 
transferred in abeyance out of the feoffees and vested in 
liobody. (See 1 Hdp. rse. b.) If there -were a possi- 
hlHty of the uses resulting by construction to the feoffor 
tintil the happening df the contingency, then, indeed^ 
the estate of the feoffees would be taken from them and 
iB^efcutfed to that use; but we are supposing a^case, 
*whcffe there ii3 no room for such a construction— where, 
to make such construction, would defeat the declared 
intention of the feoffment, which was, that the feoffor 
"should have the use for years only ; and his estate for 
years would be lost if the freehold were held to result 
*to him, for both estates could not stand together. The 
^intendment of an use to the feoffor, is, only, where the 
"tfse is left to the disposition of the law, and not where 
the intention of the parties is apparent. See note 19. 

It "was said by J^oj/y that, if a man make a feoffinertt 
in fee to the use of himself for life, the fee simple re- 
*inains in thie feoffees ; for, othet^wise he shall not have 
an estate for life according to his-intent (see Ih/er 111. 
D. in note) : and so by the same reason, would the (g^ 
'ifeittple, pending the contingency of the rise of the fu- 
■^tUT'e use to the right heirs of I. S. in the case above sup- 
'jwjsed, remain in the feoffees; for-*^as to the feoffor^i 
b^itig sei'zed during the cdntiugency — where is the dif- 
*15Btence, whether no use be limited in remainder after thfe 
term to the*feoffor or a contingent use* be linuted, see- 
ins 



i» NOTES AND EXPLANATIONS. 

ing that the statute doth not not touch the seisin of the 
feoffees until the contingency happens? Indeed 9 it is 
said in the place last cited, that it y^bs held by Popham 
and Anderson in 34 and 35 of Elizabeth^ that if A. 
make a feolfuient to the use of himself for 40 years, and 
does npt limit any other estate, tliat the fee is in the 
feoffees. 

Mr. Fearne, theref6re, was mistaken in supposing, 
that no estate remains in the feoffees after the statute ; 
for that can only be the case where the whole fee sim- 
ple of the use vests.-^How Mr. Fearne was drawn into 
that error is not to be accounted for ; but it is obserr-> 
able, that for authority, he refers to that part of 
Lord Cokeys report of Chudleigh^s case which contains 
the observations of Pertam and JVaJmsley in that case ; 
and the accuracy of which observations were expressly 
contradicted by eight of the other judges, and in the 
terms which are copied in a former part of this note. 

There is however a difficulty which will strike the 
mind of every reader. If the freehold is in the feoffees, 
in those cases, where the use of the freehold is not li- 
mited to any other person in esse^ and where it cannot 
result to the feoffor, why were the limitations to the 
heirs male in the above cited cases of Adams v. Savage 
and Rawley v. Holland held to be void as contingent 
remainders ; when a freehold in the feoffees would have 
been as competent to their support, aa a freehold in the 
feoffor himself could have been ; for certainly the rea-- 
son of the rule against limitations of the freehold com- 
mencing infuturo, viz. the inconvenience arising frooi 
a suspeiice of the freehold, would not have been inter* 
fered with, if those remainders had been permitted to 
take effect ? — If, however, the principle contended for 

4 'be 



NOTES AND EXPLANATIONS. 

•be correct, it hath not been impeached by those cases ; 
although, perhaps, it would be controled by them, so 
far as it may respect any future cases which may occur 
under similar circumstances. 

The editor has been led much further by his subject 
than he suspected he should have been when he com* 
menced this note ; but he is disinclined to curtail it;, 
because abstractedly considered the subject matter of it 
is of very great importance ; and indeed no part of It 
is wholly irrelevant to the context. 

NOTE 131. p. 62. {c). 

It was evidently the opinion of Lord Bacon that uses 
might arise and vest in the same manner after as before 
thb statute; and that they should not, although the 
possession was to be executed to the use, be subject to 
the rules of the common law with respect to the land ; 
or, as he observes in pages 45 and 43, that ^^ the statute 
will have the possession of cestui que use^ as a new body 
compounded of matter and form ; and that the feoffees 
estate shall give matter and substance, and the use shall 
give form and quality." Upon these grounds it was 
held by him, that although the son was not in existence 
when the particular estate in the use was determined^ 
yet that upon the son's coming in esse the use should 
devest from the brother and be in the son ; contrary to 
what would have been the consequence of a similar li- 
mitation of the land ; for in case of the land, the con- 
tingent remainder would be destroyed for ever, if it 
were not capable of vesting upon the determination of 
the preceding estate. There were motives of policy^ 
however, which must have prevented the courts irom 
adopting that doctrine ; for, although the inconveni- 
ences of an abeyance of the freehold woidd not have 

Gg been 



WS NOTIES AND EXPLANATIONS. 

•fa<^n the ^ontequence of giting effect to the contingent 
Use to the son at a period after the determination of the 
ifjarticnfeit eartate, for the reason, that the use and the 
possession as being annexed to it, would be in the bro- 
thelr in the mean time ; yet there would have been cause 
to apprehend an e^il of no less magnitude, that is, per- 
petuities; because— ^o limits having been then pre- 
scribed to the vesting of future and executOTy interests, 
^*-<ipon the same principle, that the use might havie 
taken efFect in the son in the case stated by Lord Bacon, 
might also future uses limited to arise at any greater 
distance of tipie have talten efFect also ; for the nature 
of uses at common law was such, as to admit of their 
being limited to arise at any future period however re- 
mote. Thus it was usual, as he observed in pages 17 
Ifcbd 18, to limit tJie use over to other persons, and thdr 
•heSrs in case of forfeiture, through mam/ degrees. 
AWwugh, therefore, in strictness, remainders in use 
did not depend upon particular estates as remainders of 
the land did (see page 46) ; yet, to have admitted limi- 
tations of uses a&^r the statute which had a tendency 
to a perpetuity, would in efFect have been admitting 
perpetuities of tlie land, inasmuch tis after the statute 
the posses!^ion or land followed and was regulated by 
the use ; and therefore, in order to guard against the 
mischirfof ^jerpetuities, the courts held, that remain- 
ders limited in use should follow the rule and reason of 
esitates tit common few. Thus, in CkudleigJCs case, ail 
tJie justices and barons agreed unanimou^, that * if 
.tihe estate for life in thkt case had determined by the 
cteath of the feoffees f (to whom, the particular estilte 
^prededing*the contingent remainders in use to the eldest 
a!ftd other^ons, was limited ;) * before the birth of the 
teldest son ; that the ^id remainders in frxtUffo were 

void; 



NOTES AND EXPLANATIONS. - ^^ 

vmd ; and should never take effect although tb^ s^q^ 
were born after/ See 1 Bep. 137, 138* How^f^Ti 
$ince the space of a life or lives in being and twenty 
one years and a few months over, ha^ been fixed upoQ 
as the boundary withia which executory devise m^st 
vest ; it is reasonable to suppose^ that where limitations 
of the use ure void as contingent reo^ainders, the cou^ 
would notwithstanding give them eff^^ct as futile oi 
springing uses, provided they are limited to vest witi^n 
those bounds; and provided also that they are i)ol 
couched in terms which preclude the conclusion, ^hat 
the intention with respect to such limitations wa^fn^i^r^. 
See notes 130 and 140. 

. NOTE 13^. p. 62. {dy 

This is another consequence of the statute's execut- 
ing the possession after the fomx and quality of th§ 
use ; for in case of the land, such limitations are void 
being of freeholds to commence in future. So if an 
use be limited to two persons jointly, only one of whom 
is in esse at the time, as to the feofFor^s brother and first 
begotten son, he having no son at the time ; yet the son 
would upon his birth take jointly with the brother, con- 
trary to the rule of law with respect to the land, which 
is, that" if an estate be limited to two, the one capable 
and the other not capable, that he who is capable shall 
tal^e thq whole. See 1 Rep. 101. Dyer. 274. b. 339. t. 
pi. 48. Co. Litt. 188. a. 13 Rep. 56. K and Mut ten's 
case Moore 96. 

NOTE 133. p. €2. (e). 

The words right heirs of B. are words of limitation 
of estate and not of purchase (see Co. Litt. 319. b.} ; 
They do not create a contingent remainder to the heirs, 

G g 2 bnt 



^1 



228 . -NOTES AND EXPLANATIONS. 

but work to the estate of B. for life, and vest the fee 
simple in him, under the rule, which is generally de- 
scribed by the appellation of the rule in Shelley's case^ 
and which was in that case thus defined—* When the 

* ancestor by any gift or conveyance takes an estate of 

* freehold, and in the same gift or conveyance an estate 

* is limited either mediately or immediately to his heirs 
*' in fee or in tail ; that always in such Cjases (the heirs) 
^ are words of limitation of the estate, and aot words 

* of purchase.* See 1 Rep. 104. 

' The editor would be culpably negligent if he omitted 
to recommend to the student's attentive perusal, the ar>- 
gument of Mr. Justice Blackstone in the case of Perrin 
and Blake J 1 ffarg. Law Tracts^ 489. The remarks 
of the late Mr. Fear ne. upon the rwfe, Feame^s Cant, 
Mem. 4 ed. 283. et. seq ; Mr. Hargrave*s * Observations 
on the Eule,^ 1 Harg. Latt^ Tracts ^ 551 ; Mr. Butler*s 
note on G). Lift. 376. b. note. 1 ; and Mr. Preston^s 

* Succinct View of the Rule ;' in all of which— as in- 
deed every reader would be led to expect from the 
Inown talents of the respective authorsT— the learning 
relating to this most important rule is profoundly and 
ingeniously discussed. 

NOTE 134. p. 62. (/). 

- It is the same thing as if the use had been declared to 
A. and his heirs, for h(eres eU pars antecessoris and in 
judgment of law the ancestor beareth in his body all 
his heirs. See Co. Litt. 22. b. And that being the 
case, A. is not in by the statute, but by the common 
law, upon the ground mentioned by our author in page 
63. that were the party seised to the use and the cestui 
que use is one person, he never taketh by the statute if 

* ' - the 



NOTES AND explanations; 229 

the use can take effect by the common law ; and here 
the cestui qui use is completely seised of the fee simple at 
common law, by virtue of the feoffment. — It was with 
the view of preventing the statute from having any 
operation in such a case^ that the word other was in« 
serted. See supra, page 43. 

At the time of the statute, uses were grown to such a 
familiarity that men could not think of possession but in 
course of use ; as our author observes in the place just 
now referred to. So much did this prevail, that, where 
a fe^flinent was made to a purchaser for a valuable con- 
sideration even, it was usual for him to have an express 
declaration of the use to himself. The editor thinks 
that the great prevalence of the practice may be ac* 
counted for in this way — It hath been observed in note 
38, that, when the chancery made an intendment of an 
use to the feoffor, where a feoffment was made without 
consideration, it became necessary for the feoffee to 
have a declaration of the use, if no consideration was 
given, and the feoffment was meant for his benefit ; and 
it is conjectured, that the declaration of the use to the 
feoffee was originally etnployed, in order to repel the 
construction of an use to the feoffor upon such feoff- 
ments ; in which cases an express declaration was abso- 
lutely necessary : and that the practise once introduced^ 
came tp be. adopted in cases even where the considera- 
tion given by the feoffee would of itself have carried the 
use to him, and have left ngroom for any construction * 
as to the intention of the parties by the chancery. 
But in all such cases as those last mentioned, an express 
declaration of the use was merely surplusage ; and so 
it is indeed it this day, where a feoffee or releasee is a 
purchaser for a valuable consideration. 

NOTE 



Q30 NOTES AND EXPLANAJIONSw 

NOTE 135. p. 63. {gY 

In the ]a$t edition the worda ar&— * and therefore if I 
give land to I, 8/ (without the words in fee) * to the 
tiae of himself and his heirs, ifc.'— the word there^ 
fore having been first inserted in that edition; ami 
properly, since Lord Bacon is about to give an e^« 
ample. 

The words infee^ which are not in any other edition 
besides the present, were deemed by the present editor 
to be a necessary addition, inasmuch as, had the laikb 
b^fin given to I. S. without saying more, he would 
have taken an estate for life merely in the lai^d i which 
estate, would not have yielded sufficient seisin for the 
supply of the fee simple of the use to I. D. when that 
use should arise : for Lord Bacon himself bath said in 
l^age 47, ^ the matter and substance of the estate of 
cestui que use^ is the estate of the feoffee, and more 
fae cannot have ;' and he mentions this very case of a 
feofiee having but an estate for life, to show that cestui 
que use can have no inheritance. 

With res]ject to the words^br /i/i? or for years^ in 
this edition substituted for and his heirs^^^lf the limita«» 
tion of the use had been to the donee afui his hetrSj he 
"wOuid have had the fee until the payment of the money 
by L D. and not an estate for life or years. See JBro. 
Mr. feoff, al.uscSy pi. 30. and Springe and Ceasar^ 
I Moll. Ahr. 415. pi. 12. Lord Bacon instead of and 
his heirs must therefore have said^br life or for yearsy 
since he afterwards points out in what manner L S. will 
be in of those estates; for it is impossible that Lord 
Bacon's meaning should have been, 'that the kind of 
estate which L S. had. prestnthf^ should depend upon 

the 



NOTES AND EXPL'ANA-nOm 231 

tJie distance of the time when 1» S. might cbahce to 
pay the me'ncy; ad it is uncertain when it might be 
|>aid^ or whether it would be ever paid at ail. 

NOTE 136. p. €3. (h). 

The wocd$-*wp(w pag/m^nt of the money — are ne^ 
ia the ^ther editions ; but the editor thinks it obviou9» 
' eidier, that these words ought to have been added 
because by the terois of the limitation the use is not t^ 
arifie to L D. until the money is paid; or otherwise, 
that tbe conditional words, if I. D. pay a sum sf 
imney in l^e preceding part of the sentence, omitted ^ 
:and it is probable, that Lord Bacon, had he corrected 
bis work lor the press, if ould not have retained thosie 
^conditional words; «ince they were not in the leaist 
necessary to make a part of the case stated by hkn, fot 
kis intentioi} evidently was, merely to give an instancy 
wliere one cestui que use should be in by the common 
law, and another be in by the statute, and I. S. and 
L J), woukl be so in immediately, if there had been no 
jOOEiditioBal words in tfae<case. 

Although the editor has a very ^ong belief^ tbat 
Lord >Bacon taeant to ^itate ^the case in $uch a B^anner^ 
as, that L D. should take presently ; and consequently, * 
that the 'Conditional words would never have been^ia 
-the work if it had been printed from a correct ciapy^ 
yet he thinks, that it would be unjustifiable in him to 
leave oot those words ef the text, and he therefore 
ti^ought it better, to insert such additional words, as 
appe4»red to bim to be iiKlispensably reqaisdte'to com- 
jplete the case^ 

NOTE lOT. p. 63. (/). 
From what. Lord Bacon here says, he appears to 
have thought, that in such cases as he states, the in- 
heritance 



«32 NOTES AND EXPLANATIONS. 

beritance of the use passes and vestd in the bargainee 
presently; and, tliat there remains only^n estate for 
years in the bargainor ; but although much might be 
urged in support of his opir^ion,^ a contrary doctrine is 
now too firmly established to admit of being shaken.— 
In Lord Pagefs case, which was decided a few years 
before the time of Lord Bacon's j^eadingj it was as* 
serted arguendo by Cook, that, if * I covenant that * 
after twenty-four years ended, I and my heirs will 
stand seised to the use of my son, &c. there the use 
in fee doth vest in my son presently;' but the court 
was against him. See 1 Leo, 195. and 1 Rep. 154. 
Im the case of Weale y. Lower ^ [Poll. ^5.) Lord Chief 
Justice Hale expressly said, that, if the limitation of 
an use be, that after two years or 'after the death of 
John at Stiles it shall be to the use of L N. in fee, the 
feoffor hath the fee simple remaining in him until thi* 
future use comes in esse. So Lord Chief Justice Holt, 
in the; case o{ JJavies v. Speedy (1 Salk. 675.) held, 
that a feoffment to the use of A. and his heirs, to com* 
mence four years* from thence, was good as a spring-i^ 
ing use ; and that the whole estate remains to the feoffor 
in the mean time. According to the report of the case 
in 12 Mod. 39. Holt put it of a bargain and sale; but 
it is no way material in relation to the point under 
consideration, whether such an use be raised by bar- 
gain and sale or by feoffment. 

With respect to executory devises also, the same 
doctrine is established*— as, where A. seised in fee, 
devised to B. in fee to commence six months aftet A.'3 
death, it was held good as an executory- devise ; -iand, 
that, during those six monthsy the estate desceMed and 
continued in the heir at law. See the case of Clarke V. 
Smith, cited in Fearn£s Ex, Dev. 4.ed. 18 and 51 L - 
* ^ NOTE 



V 



I 

NOTES AND EXPLANATIONS, 2SS 

JJOTE 138. p. 63. {k). 

It is occupier in the other editions ; but it is con* 
ceived that Bacon meant^ that there remains an estate 
for years or occupation of my estate by a kind of sub* 
traction of the inheritance, &c« In the edition of 
1642, (when the editor apprehends the work was first 
printed) the word occupier is in a different letter, 
owing probably to its not appealing clearly from the 
manuscript, whether it should be occupier or not. 

NOTE 139. p. 63. (/). 

The words in fee are not in the other editions; but 
unless the feoffment were in fee to I. S. neither the 
limitation of the use to him in tail, nor to I. D. in fee, 
would be uses executed by the statute, but limitations 
of the legal estate. 

Without the words in fee ^ this case would be similar 
to that which is reported in Cro. Car. iioder the title 
of Jenkins v. Young y in pages 230, 231. and undet 
the title of Meredith v. JoanSy in pages 244, 245. 
where, lands were given to one Randall and his wife, 
habendum to the said baron and feme to the use of them 
and the heirs of their two bodies ; and for default of 
such issue, to the use of Edward Morgan and his heirs^ 
and the judges held, that they were limitations of the 
legal estate and not of an use divided from the estate : 
and they said, it should be taken as a limitation to 
them (the baron and feme} and the heirs of their bodies, 
remainder to the other and the heirs of the other. Loi^ 

m 

Bacon must therefore have intended a feofiTment in fee 
to I. S. 

If there had been no remainder limited over to I. D. 
the use in tail would have been executed by the statute 
in the same manner 13 Rep. 56. 

H h NOTE 



«8* NOTES AND EXPLANATIONS^ 

NOTE 140. p. 63. (m). 

This ute, b^ing liiiiited to 6omrti€!iice afe^ * dying 
^ithbtit issue, Wx)uld be V6id, as being too telnote, 
Stee Fearne'^ Ex. Dev. 4 ed. 116. and the cases there 
cited. Had arty words been ^dded to confine it within 
proper limits, the use would have been good— <is, if he 
hid said, after my death without issue, if I die with^ 
&ui isstte within twenfy-jfears^ Per. Holt CJh* J. ift 
Davies v. &peedy 2 Satk. 615. 

It has been remarked by Mr. Fearne^ that the ground 
upon which the proviso in the case of Lloyd v. Cdrew 
was admitted to take effect, affords ati inference, that 
future and shifting uses and other executory interests 
which are not remainders, are to be considered as 
subject to the same limits and restrictions as executory 
devises. See Fearne^s Ex. Dev. ed. sup. 84. and 
Mrw Powiell^s note, tn order that a limitation may be 
good and capable of taking effect as an executory 
devise, it must be limited to commence on an event 
which must necessarily happen within twenty-one years 
and the ulterior period of gestation after a life or 
lives in being. See Feam£s ]Ex. Dev. passim. There 
is however one exception to this, and that is of an 
executory devise to commence in derogation of an 
estate tail ; and the reason for this exception, is, that 
* — as all collateral and conditional limitations annexed 
to an estate tail, and therefore all executory deviseis 
are barrable by the commbn recovery of tenant in 
tail,"— there cannot be any foundation for apprehending 
the inconveniences of perpetuities, which is the cause 
of all other executory devises being confined within 
the above-mentioned Unfits. See Feame's Cont. Hem. 
' 16. and Ex. Dev. 106 and 10*7. ed. sup. in note. 

NOtE 



NOTEjS ANP EXPLANATIONS, im 

' NOTE 141. p. 64. (q). 

Tb^e lire r^ferenc^e^ to thi$ note frooi lai^ny parts of 
tb§ text ; and in eax;h of those places qiiy author must 
1^ understood to mean a feofFqaont in/^^ ^ a 1^9 ^tf^t^ 
^n 9, fee wQ^ld be inadequate, 

NOTE 142, p- §4. ,{p). 

IjH^ B9^p^n*4 mining is, th^t hp C9ntim^s in by tho 
•gcm^on Ulw ^f|er b? iqarries ; for he is in by th^ 
^ommoii law before bi^ n^arriage U9d§r the fiepfifment. 
Tb^ US9 wbipb wgs to bs^ve arisen upon tb^ marriage ijk 
prerapfita^, be^^Ause th§ iptended cestui que me b^ th§ 
Iftfid i %fA it is a sifBil9,f c^se to tbe one where a fn^ip. 
d»ould poreiiai»t %o sUind seised ^P the ii^e of bim^^jif. 
Upon tb0 marriage, tb& use tberiefore doe^ not s^ris^ 
to hi«a, so »^ tp cj*»5e bipi to be in by t;bp J|tat»l:/^ j but 

ki^ Continues mditt^^^qmmmh^T , 

NOTE 143. p. 66 Id.) 

In San^nes c^e, it was said^ " if a dis^isin be h»<J 
to the wse of two, and one of tfaejn agreetb at one tin^^ 
and the other at another tim^^ they shall be joints 
tenwtgi;" see 13 Bt^p^ 5^f 57; and see al^p Cg'^Litt. 
188. a* Now, if 9. statute use be meant, the abov^ 
doptrijQe is not reconcileabJe with our author's jobserva- 
tiop i^oy^f that upon agreement it is in the cestui gu^ 
m? by the CQpwpu law ; but the editor apprehends, 
tb^t ib^re is sufficient pciatter from whence to conclude, 
j^at their being seised adjoint-tenants by virtue of thf 
statute qf uses was npt meant; for we are to observe, 
ith9.t in Sammes case their ^Teement to the disseisin, 
was spoken of as being pecesip^ry previpu^ly to their 
l^cpming tomLDis : but, if the .uf^ biui »ximi to them 

H b 2 upon 



235 NOTES AND EXPLANATIONS. 

upon the disseisin, in other words, if the disseisin had 
been to the use of the two, as to an use executable by 
the statu£e of uses, that statute would have executed 
the possession to the use immediately upon the moment 
that the use arose ; and they would have been jointly 
seised before any agreement. There is* a case in 
Statham, (see Stath. Abr, tit. entr. cong. Pasch. 
34 Edw. III.) which cornea directly to the point.— 
<< Where one enters claiming to himself and another 
or to the use of another, where his entry is not lawful, 
this does not give the possession to the others without 
agreement ; otherwise it is where it is lawful''. From 
whence it is to be collected, that the person to whose 
use the entry must be made, had upon agreement, the 
possession at common law ; and as it was so before the 
statute of uses, then, (forasmuch as the statute doth 
not work, where cestui que use had remedy for the 
possession by course of common law,^ as our author 
observes,) he would also be in by the common law 
since the statute ; even supposing, that an use executa^ 
ble by the statute may be upon a disseisin ; but which 
it is contended there cannot be, for the reasons ad« 
vanced in page 44, and in note 81 • 

It is laid down in broad terms by some modern 
* writers, that a disseisor cannot stand' seised to an use^ 
thaii which, nothing can be more incorrect. It is true, 
that, where at common law the feoffee to uses was 
disseised, the disseisor did not stand seised to those' 
uses, because privity of estate was wanting ; the dis- 
seisor being in of a different estate than that, to which 
the uses were annexed in privity : and the observations 
in Chudleigh^s case, (1 Hep, 122.) are confined to the 
point, that the disseisor should not stand seised to the 
same uses that the disseisee did. But there can be no 

doubt. 



NOTES AND EXPLANATIONS. 23r 

doubt^ It is conceived, but that a disseisor has the 
same capacity, by covenant, bargain, and sale, &c. 
to limit uses out of the estate which he is so possessed 
of by disseisin, as any other person hath out of an 
estate lawfully vested in him. Whence arises his in* 
ability? 

NOTE 144. p. SB. {q.) 

It was observed in the last note, that, where an 
entry is made to the use of another as A. for example^ 
by one whose entry is lawful, the possession will be in A. 
without agreement; and for this reason,. in the case of 
an occupant, the possession would be in him to whose 
use the occupant entered without any previous agree- 
ment ; because, where tenant pur autre vie died atid 
there was no special occupant, the entry of any per-< 
son on the land was lawful ; and he who first entered, 
was entitled to retain the land, so long as cestui que 
vie lived by right of occupancy. See 2 Black. Comm. 
258. Co. Litt. 41. h. But, as the law will not suffer 
the possession to be forced on a person contrary to his 
will, it of course would not, after disagreement, con- 
sider the possession to be in him to whose use the oc* 
cupant entered. 

It' should however be observed, that common oc- 
cupancy since Lord Bacon's time hath been utterly 
abolished by the statutes 29 Car. II, c. 3. and 14 Geo II. 
c. 20. the former of those statutes, enacts, that the 
tenant pur autre vie may devise his estate by will; and 
if not devised, that it shall go to his executors or ad- 
ministrators and be assets in their hands for payment of 
debts ; and the latter statute enacts, that the surplus of 
such estate pur autre vie^ after payment of debts, shall 
go in a course of distribution like a chattel interest. 

With 



23S NOTES AND EXPLANATIONS, 

With respect to special occiipi^ncy-*«>iis where ibf 
grant pur autre itic is to a jrQfta awi his heirs j^^'j^ oth^; 
persoofti than those speckiUy marked out by the origio^l 
gnint, have any right to the possession of the Und 
after the death of the tenant ; and the tit^e ^ tho spe^iftl 
occupant is not touched by the above-mentioned 9t^ 
,tute. 

As an occupant continues the estate of tenaxit pur 
autre vie^ as his substitute, he must take it as he found 
it; consequently, to the uses declared theroupon.--* 
An occupant therefore may be seised to an use. 8ea 
Gilbert* s Law of Usesy 11. 

NOTE 145. p- ^6. (f). 

This most important branch of the ^qJijectt ^ v^U 
as the second and third divisions of the third diseoni'^^ 
mentioned in page 56, of the former ef wjiichf it 19 
likely that the division of revocation formed a parl» 
9are not to be found in any part of this work ; wd «r9 
in all probability for ever lost to the profes«iojQ,-«-«Tbr 
editor bad it in contemplation to subjpio ^q ceae ^ 
revocation of uses from Sac's Law Tracts; bmt wlieo 
it was oonsidered, that no vfij^y large pprtio^ pf tbt 
learning on the subject is embraced by that C9#e» h^ 
relinquished his original plan. He bovrievfir ibinlo it 
tight %o refer the reader to that case, wA to Mr. Pewe}r# 
book Qn powers^ ivbere the di^brexM; e»ses 9m brought 
together. 

NOTE 146. p. «7. {s). 

They cannot at this day, for all d^krations of uses 
must now be in writing. See Note 20. 

NOTE 147. p. 67. {/). 

Tlie reason why* tbe use cannot be countermanded 
without avoiding the feoffment, fine, or recovery upon 

which 



NOTES ANt> EXPLANATIONS. S39 

Whith it &tm^y i&, that the trses ar6 but as accessdiry to 
thd fedffiftem) fin^, or rdcovety, tvhich are the prin- 
c}|Md/ Sefe what k said Dpcm this subject in Becktmth^s 
<m^, {2Bep. 58. a.) in Mary Pvttington's case, (iO 
Hep. 42. b.) and in MansfieWs case, 12 i?q». 124.— 
Sd long as the feoffment, &c. remain in force, the law 
eMsidefB, tbdt the infant w^ enabled as to the prin-^ 
dpal, a6 {& man of full age ; and therefore, would not 
at th^ fiMSLnie time upon the ground of infancy, consider 
Utti dibbled to do tliat, which, when done, ife but an 
accessory to that very principal. — * The declaration oS 
tiim \% thd same conveyance, and if the one stands the 
tf&mc ttiustj* by Lord Hardwicke, in Hearle and 
&r<6^mki Powell on P&wtrs 48.—' The deed limiting 
the n^s \% supported by the fine, and infancy cannot 
be alkdged against it so long ai» the fine continues in 
foree,' by Lord Cbi«f Justice Holt in Jones v. Morl&f,^ 
t tj6td RaytMnd 289. In order therefore to destroy 
the vm% in such .cases, it is necessary to strike at the 
root whmiQii tfaiiy ^SfpTang, that is, the conveyance 

If the vm}^ limited by sm inf^ftnt on a fine pi: recovery 
be not avoided beft>re he arrives at full age, they can** 
not afterwards; because, the non-age of the party to 
^^oid the tine or r^overy must be tried by inspecti&n ; 
4tid such a trial after full age would prove him under 
Ho disability ; but, perhaps, if inspection were hiade 
wb^n under age, it would be sufficient to enable him 
to iivoid the fine Ot recovery after he should arrive at 
full age ; b^cau^ there would be evidence of his non*- 
age^atu p^iod of time aft)^ the fine levied or recovery 
$uffey«ed, and consequently, sufficient proof, it is 
|>resumed, of bis having been an infant at the time of" 
tim fian ^XGi^wv^f. Thft jri^soU) why those acts of 

record 



140 NOTES AND EXPLANATIONS. 

record must be avoided by writ of error, and, why 
they become obligatory and unavoidable if not set 
aside before the infant comes of age, is, that the con* 
tracts being entered into under the inspection of the 
judge, who is supposed to do right, the infant cannot 
against them aver his disability ; but must reverse 
them by a judgment of a superior court, which by 
inspection hath the .same means to determine whether 
the inferior jurisdiction has done right that first re^ 
ceived the contract. See 3 Bac. Abr. 597. 5. ed. and 
authorities. 

But with respect to uses declared upon feoffments 
made by infants — ^as such feoffments themselves may 
be avoided by the infant, either within age, or at any 
time after his full age, and by his heirs after him in 
case he agreed not to the feoffment after his fiill age, 
(Cb. Liu. 2. b. 248. a,) so of course may the uses 
declared by the infant upon those feoffments be avoided 
^Iso; but, where the infant himself is the person who 
was seised to the use, there, after execution by the 
statute the uses are not avoidable by him, because the 
statute does not contain any saving of his rights in 
£uch a case, as observed in page 58 of the text and in 
note 115, which see. 

It is however conceived, that tord Bacon does not 
mean to say, that in no case can an infant avoid the 
use without avoiding the conveyance by which it was 
created ; but only in those cases, where the feoffment, 
&c. i$ made by the infant himself, as the cases in Cokeys 
reports above referred to are. But upon the authority 
of the above passage in the text and of those cases, 
it has been laid_ down as a general proposition and 
without any exception, that * declarations of uses by 
•an infant will continue valid, as long as the cohvey- 

4 ance. 



\ - 



NOTES AND EXPLANATIONS «41 

tnce^ Upon which the uses are declamd remains' of 
force/ and that the infant ^ cannot avoid the declara^ 
tion of th$i Use without av6iding also the fine of 
recovery ;' but to that doctrine, the editor cannot 
accede, for suppose, that a fine is levied, recovery 
jsudered, or feoifment made, to such uses as A. a 
Jiurchfuier shall during his life, and in case of uo ap** 
pointment by him, as B. the eldest son of A. tbea 
living, shall limit and appoint. A. tbe purchaser dies 
without having appointed; and upon his death B* 
under age executes the power, and limits the uses* 
Can he avoid the appointment^ and the uses tiiereby 
limited, without avoiding the fine,^ feoffment, or re« 
toyery ? Now, although the declaration of uses, as 
above observed, is but as a p^ of the fine, &:e. ; 
yet the fine, &c. not being in the case we ate suppo»^ 
ing, the act, or by the contract of the infant, and 
consequently, not avoidable by him, there can be no 
reason why the infant may not avoid the declaration 
without the fine, &c. ; since-*-*as observed in Bac. Abr^ 
ubu sup,'^-4hey are regularly allowed to break through 
aU contracts in pais made during their mznority. 

-The ground, why the declaration in the cases men. 
tioned in tfaeb^inning of this note, shall not be a^voided 
without the conveyance itself, is, that as the conveyance 
continues in force, the declaration of uses must be ooiu 
sidered good, since the disability would be fatal to one 
as much a& to the other ; and therefore, from the cir- 
cumstance of the conveyance hemg in full force, it 
would be presumed in those cases, that the infant waa^ 
enabled to make a perfect declaration of the uses : bxit 
here the case is different, for the conveyance creating 
the use not having been made to or by the infant, he 
has merely a power luider it ; and the sole questioa, is, 

li whether 



242 ' NOTES AND EXPLANATIONS. 

whether he can do away any execution of that power? 
and it is conceived, that there can be no doubt/ but 
that the in&nt may vacate such a declaration of the 
uses, although the fine, &c. still remain in force, 
since his act extends no farther than the declaration ; 
and consequently, that an execution of the power 
during his infancy may be set aside, and the same 
power executed with effect upon bis coming of age. 
Whether such an execution under age, would be void 
in the first instance, or only voidable, would depend 
upon die same principles as the case of the bargain and 
9ale mentioned by Lord Bacon a few lines below. And 
see the following note. It must be understood there- 
fore, that the necessity of avoiding the conveyance in 
order to set aside the limitation of the use of it, is only 
where that conveyance is the infant's own act. 

NOTE l48. p. 67. (w). 

. Those contracts from which, the infant may receive 
benefit, are avoidable only ; but those, in which there^is 
1)0 apparent benefit or semblance of benefit to the infant, 
are absolutely void. See Cro. Car. 502. and 3 Bac. 
^br. 59S, 5 ed. and authorities. It inust therefore 
have been upon the principle, that there was no apw 
parent benefit to the infant from the consideration of 
blood or marriage, that Lord Bacon considered this 
tise void. As there is a sufficient benefit from the subject 
of .those considerations to raise an use out of the seisin 
of an adult, it must be understood,*— when the law speaks 
of benefit to the infant— that it means the benefit 
.arising from the improvment of his estate and property 
merely, and not the benefit or satisfaction resulting 
from his relationship or marriage; and hence the 
reason, why an use under the covenant by an infant 
■ 4 in 



NOTES AND EXPLANATIONS., 945 

in consideration of relationship or marriage^ is yqid 
in the first place, and not merely voidable. 

But it is to be observed, that it was laid down by 
I^rd Mansfield in the case ofDruiy v. Di^ry^ (5 Bvq. 
Pari. Cos, 570.) and has since been relied upon in the 
case of Mdddon, Baker and others^ against 1V,/iii^ 
and otherSf 2 Term Hep^ 159. that if an agreement be 
for . the benejit of an infant at the time it shall bind 
himj and the case of Drurxf v. J)rury was that of an 
infant, who was held to be bound in a settlement 
before marriage by the jointure which she accepted. 

So in the case of ffollingshead v. Hollingshead-^ 
where an infant having a power to make a jointure^ 
covenante^d with the relations of the ^ife, to settle 
within six months after he came of age, so much of the 
land as shojuld amount to lOOl. per. annum, on his 
intended wife-F-it was held, the infant was bound by 
this covenant. See 1 Fonb Tr. Eq^ 78.. 3 Bac. Abr. 
^03. 5 ed. and Pow. on Poxo. 2 ed. 180. See further 
as to thie distinction between such acts of infants as 
are voidable only and such as are void in Perk. sect. 
J2; the case of Zouch and Parsons y 3 Burr. 1794^ 
And Har. and Bikt. Co. Litt. 51.. b. No. 3. and 246. tf» 
it*). 1, 

NOTE 149. p. 67. (:;). 

The meaning of this passage is, that the bargain 
and sale of an infant is good, with an ^averment that 
the money which )yas the copsideration of the bargain 
and sale was expended for commons or teaching, which 
may be considered in a certain degree as necessaries. 
That if the bargain and' sale was for money simoly^ 
without an averment that the money was for necessaries 
as for commons or teachijig, it would not be good. 

J i 2 . Then, 



244 NOTES AKD EXPLANATIONS. 

Then, not being good for want of such an a ve r me n t, 
if it should be proved that the consideration money wa$ 
paid, the bargain and sale would be voidable only$ 
but, if it should recite that money was paid, and the 
fiict should be proved to be otherwise, the use woulc} 
be void. 

In Cokeys 2 Inst. 613. it is said generally, that aq 
infiBLnt may avoid his bargaUi and sale when he wiUt, foi^ 
that the deed was of no effect to raise an use. 

In the case of a man of full age, the recital of money 
paid, is, our author observes, sufficient ; and, for that 
reason, it is, that in the case of a bargain and sale for 
a year whereon to ground a release, no other con- 
sideration is necessary than the merely nomin^ one of 
fiveshiUings, 

NOTE 150. p. 67. (tt>). 

With respect to declarations of uses by Baron znd, 
Feme, of a fine levied by them of land whereof they 
were seised in right pf the feme, the following points 
were in substance resolved in Bpckwitk^s case,' 2 Sep, 
66. Moore 196. (Reported by Anderson under the 
title of Colgate v. Blith. 1 And. 164.)-rrThat, a de- 
claration of the use of such a fine, by the husband 
only, shall bind the wife if her disassent does not 
appear ; for, when she joins with her husband in the 
fine, it shall be intended, if the contrary cannot ap- 
pear, that shC'joined also with him in agi*eement in the 
declaration of the uses of the fine. 

That, the wife only, although ghe is owner of the 
land, yet for as much as she is sub potestatevirif she 
cannot, in respect of her coverture, without her 
husband^ limit the use* And, on the other side, the 

husband 



NOTES AND EXPLANATIONS. S49 

IiusbatiS who hath not any estate in bis own right^ can,, 
not against the agreement of the wife limit the uso^ 
for he is not owner of the land, ' 

That, if the husband makes one declaration of the 
use and the wife another, and the uses under the two 
declarations be not in perfect conformity, even, if tht 
Tariance be only in the first particular use, as, for 
example, the wife litniting it to herself only for het 
life, and the husband Umiting it to him and his wife for 
their lives, wd although all the other uses in remainder 
in both the declarations are according to both their 
consents, yet ^1 such uses are void. 

But if the husband and wife agree in the limitation of 
the use of part of and in the land, and vary in the 
limitation of the residue of the land, it is good for the 
part in which they so agreed ; and void for the re- 
sidue, — The difference may be explained, by suppos- 
ing, that a fine has been levied of Whiteacre and 
Blackacre. — ^If the husband declares the use of both 
acres by one deed, and the wife declares the use of 
both by another, and there should be any variance^ 
however slight, between the uses so declared, although 
in the main they may be the same, all the uses will be 
Toic}.— But supposing that the uses with respect to 
Whiteacre correspond in each declaration, and thi? 
variance should be only with respect to Blackacre, 
then, both declarations will be void as to Blackacre 
only, and good for Whiteacre. — ^This explains Lord 
^Coke's note in the above case as to the diff^ence, be-^ 
t^een variance touching the limitation of the use of 
part of the estate of the land ; and touching the 
limitation of the use of part of the land^ itself. See 
further the cases of Lusher v. Banbong^ Dyer 290. a, 
j^non. Moore 22. pi, 73. and Swanton v. Raven^ 3 
4tk. 105. 

Although 



f4$ NOTES AND EXPLANATIONS. 

Although it may be collected irom what Bacon sajf 
in the context, as well as from Beckwith^s case above 
cited, that the husband alone may make a perfect de«- 
claration of the uses during the coverture ; yet, or 
account of a difference in the reports of that case by . 
Coke and Moore ^ it is doubtful, supposing the bus.* 
band to make one declaration of the uses and the wife 
another and there is any variance between them, 
whether the declaration by the husband will bind him 
during the coverture or be totally void ? According to 
Moore it was considered good during the coverture. 
See Moore 197, But Coke, to his report of the case^ 
adds a note, in which, he expressly says,, that although 
the husband may dispose of the wife's lands during the 
coverture, yet in that case for the reasons and causes^ 
aforesaid, (that is the variance in the two limitations,) 
his declaration was merely void. See 2 Rep. 58. b, 
Anderson says, that both the declarations were utterly 
void; which seems to strengthen Lord Coke's re^ 
presentation, for, if both were deemed to be utterly 
void, then the husband's declaration could not hav^ 
been, considered good during the coverture. See 
1 And. 164. 

As, in this note hitherto, declarations of uses on 
fines only, are treated of, it may not perhaps be 
superfluous to observe, that the law is the same upon 
declarations of the uses of recoveries suffered by th^ 
husband ^nd wife ; but, with respect to a feoffment of 
the wife's land, pr any other conveyance than a i&ne ox 
recovery, if the husband and wife should join in dce- 
daring the uses it would not be good against her, for a^ 
she would not be bound by j:he feoffment, &c. she might 
'by setting aside the principal^ vacate the cleclaratip^ 
which is bu): as accessory, , 



247 



CONTENTS. 



ABEYANCE. ' 

ESTATE of the land in, not executed by the statute, 61, 62, 

and N. 124. \ '' 

An use in, not executed, 63. 
Unless where in a similar case of the land the rule in Shel* 

ley's case would apply, 64. 
Whether any part of the estate of the feoffees is transferred 

in abeyance where future uses are limited, 49* N. 89. 
The jGreehold cannot be in, 39, 221. 

ADVOWSON. 

Whether king Could present to, where vestui que use of, 

was outlawed in personal action, 5. N. 3. 
Bargainee has no title to present to, before enrolment, 

W. 106. p. 173. 

AID-PRAYER. 

What, N. 109. 

ALIEN. 

May be seised to an use until office, 61. N. 119. 
Qther matters concerning aliens, 26, 43, 44. 

ANNUITIES. 
Uses of not executed, 44. ^ 

APPOINTMENT 

Of the use by will between the statutes of uses and wills 
amounted to an indirect devise of the land itself, N. 80. 

ATTAINTED PERSON 

May be seised to an use until office found, 60, 6L 
Where Lord enfeoffed to the use of, 61. 
Can only purchase for the benefit of the crown or the Lord 
ef the fee, N. 119. ^ 

BARGAIN 



SW CONTENTS. 

BARGAIN AND SALE. 

Knrolin.ent of, 41, 55* 

As to relation back of the enrolment, N, io6* 

Whether bargainee under seised before enrolment, Hnd» 

Opinions on this subject controverted, ihid» 

Of an infant where good or not, or void,' of only voidable^ 

69. N. 14.9. ^ 

Under bargain and sale for a year, the bargainee haa not 

the actual possessiofi without entry, N. 87. 
To what purposes the enrolment shall have a relation back 

totlie date, N. 106. 

BARGAINOR AND BARGAINEE- 

Whether the bargainor or bargainee seized between the 

date and enrolment, N. 106. 
Some opinions upon this head controverted, ibid, 

BARON AND FEME. 

Feme may be enfeoffed to an use, 60* - . 

Baron cannot root up the feoffment after the Use executed^ 
ibid. N". 117, 115. 

May destroy the feoffment and prevent the use where con* 
tingent, 60. N* 117, 

Distinction where the use is, or is not, first limited to th« 
feme, N. 117. , 

As to execution bjr the feme before the statute, 60. N. 115. 

jBaron may be seised .to the use of his feme for years, and 
she have the term after his death, 61. N. 122. 

As to declarations of uses by, 70. N. 150. 

As to alienations by the feme of the lands of her deceased 
Baron, 51. N. 99. 

How executions by the statute of the estate of a feme co- 
vert differ from executions by th^ party at common law, 
N. 115 and 117. 

Chattels real of the feme do not absolutely vest in the boron^ 
N. 122. 

Whether where there is a variance between the declara- 
tions by the baron and feme, the baron's shall bind him 
during the coverture, N. 150. 

The feme not bound by the joint declaration of herself and 
baron of the use of any other conveyance, than a fine or 
recovery, ibid. 

BISHOP. 

Astoantise on tire ^sin of, 59. ! - 

Enfeoffed to the use of his successors^ 9^/ 

CESTUI 



CESTOT QUE VSt 

Was without remedy at the common Iaw» 20, 21 . 

The king may be, S^ 

Where peatui ^ .useMd the persmk seised k the s«oe ftojfl 

yet in by the statute, 65 to 68. 
Wiiere di&rent persans and y^et in by thecommcm ii»w, €$^ 
At vcovumoin law was a trespasser i/ih^ ootered Ai^toaJus 

feoffee, N. 2. p. 73. 
M commoo Jayir might l>e a jiu«rf N. 2. p« 71^ 
Mu«t his iu .t89e bekiTie the sUAiite wiU .cuK^cuie (he j^ssessida 

toirtieuse, N.71. 
Cannot bring trespass without an actual e»tr|r« N. 87* 

p. 14^, 
One cestui ^ue use may be in by the common law ui course 

of jiossessioi^ ajad aootber b^ 'm by, the statute ^IdiOMgii 

ibotb uses Are i^Kn ibe same seisin^ ^i» mid N« iS^. 

CESTUI QUE VIE. - 
Wkeoe iie swidves tenant fmr mttnevie, a^l, ^. VI* IM* 

CIHAIiC£Rr. 

Hesitated to giy£ r^aaedjr, 20> ;2S, 2i. N> 92. 
Could not at first, N. 52. 

Could not compel the exeeutien laf aft «tftsrte tail <to tannise «t 
common law, N. 114. p.. 188. 

CHATTELS. 

V Uses of not executed by the statute and why, 43. N*- 68. 
Were ever deviseable, ibid. 

Chattels real of the feme do ask dbsvlutelf rest hi the 
baron, N. 122. . 

CONDITION, 
S^nification ^ tliib vmrd m in^ ta ifae statete, io. 

CONFIDENCE. 

The reposing of, the way to an use, 9, l-O. N. 8. 
Used as a synonymous i^m with the word -use t dfete Ifae 
statute, N.75. iN. 125. p. 234. 

CONSIDERATION 
Necessary to rsdse an use, 14. N&. 18 and t9> 

CONSTRUCTION. 

Une by, N. 2. 

Wb^tberof bww of equity, litdL 

Kk Um* 



250 CONTENTS- 

Us6«? cannot be by iconstruction where others are expressly 
limited Ns. 19 and 125, and N. 130. p. 223. 

CONTINGENT USES, 

N6t executed by the statute till cestui que we is in esse, 4/3, 

44, 63. Ns. 71 and 76. • 
In refbainder, will be supported by a fight of entry in any 

person who has had a vested freehold in the use, N. 90. 

p. 153 
Contingent remainders of the use will in some cases be 

supported by the freehold which results to the feoffor, &c. 

where the particular estate expressly limited is only for 

years, N. 130. 
Not *io where a term for years is limited to the feoffor, &c. 

himself, ibid. 
Where void as contingent remainders they will be good as 
* springing* uses if limited to arise within proper bounds, 

ibid, and N. 131. 
Contingent remainders of the u^e at common law did 

not depend upon the particular estate like contingent 

remainders of the land, N. 131. 
But held to do so after the statute,. Und. 

CONTINGENT REMAINDERS. 
To an use, not executed, 61. N. 124. 

CONUZOR, CONUZEE. 

Of a statute, 55, 56. N. i©7, 

COPYHOLD. 

Its resemblaiYce to uses, 20. ^ 

CORPORATIONS, 

Uses not executed upon the seisin of, 43» N. 113. 

If they could <tand seised to an use, 59. N 119. 

As to the distinction between giving and standing seised to 

an use, N. 113. 
May take an use, 62. 
May limit an use, 69. 
Distinction between its taking and limiting an use, N^ 113. 

COURTESY. 

Tenant by, 38, 39. 

COVENANT TO STAND SEISED 

By an infant, as to its being merely void or not, 69. N. 

14S. 

DECLARATIONS 



CO^TTENTS. 251 

^ DECLARATIONS OF USES 

Must now be in writings Ns. 20 and 146. 

DEVISE. (See ^itf also.) > ^ 

Uses at common law deviseable^ II. N. 12. 
ijands not being so was one cai^se of uses^ 21 and N. 34. 
If uses deyiseable between the statutes of uses and wilb, 
45, N. 80. ' 

DISSEISIN, DISSEISOR, DISSEISEE. 

Disseisin, 44. N. 10^. 

Disseisin novel, 27^ 

Pisseisin to an use, 46^ 68. Ns. 81 and 143.. 

Disseisor may be seised to an use, and some opinion!^ to the 

contrary taken notice of, N. 143. 
The land not subject in the hands of the disseisor or to the 

same uses that the disseisee held subject to, ibid» 

POWER 

At CQipmoii law, could npt be depended upon before t^e 
statute, N. 105. 

Could not by the common law be barred by collateral 
, . satisfddtion, ihid. 

Will be barred by this statute by a jointure made before 
marriage, but if made after marriage the feme hath an elec- 
tion, ibid. 

Ordinance respecting in the statute, ^5. 

Bargainor's wife entitled to, where he marries and dies 
between date of the deed and enrolment, >{. 106, p. 
473. 

But liable to be taken away if the deed afterwards enrolled 
in due time, ibid. 

ENROLMENT. 

Statute of, 41, 55. N. 106. ■ * 

As to relation back of, to the dale, N. 106. p. 175, 
Whether bargainee seised before, ibid. 
Some opinions upon this head controverted, ibid. 
Djeclarations of the use and the conveyance unless of 

record must be enrolled in case of the king, 62. N. 127* 
Hath a relation back to make good recovery of bargainee 

against whom the pracipe was brought before enrolment, «te 

N. 106. p. 176. 
And to avoid the mean charged of the bargainor and the 

dower of his wife, ibid. 
As to what other purposes doubtful, ibid. 

K k 2 ENTAILS* 



tt5Z^ CONTENTS^ 

ENTAILS 

Saving oC in statute Ric: IIL kom to hat taiuny St^ 
No «iaving of, in the statute of uses« 60. N. 114. p. 188^ 
189. 

BNTRH?. 

A rfght of, not executed by the statute^ N*. ^. 

Of t^e feoftees, necessary in some ca<^es in OFder to the 

execution of uses by the statute, ibid, and N. 9Q. 
An acrual ent^y neoossasy befote> cestuL g^ wn can bring 

tre^pa>s N. 87. p. 147. 
An actual entry by bargainee for a year necessafty upoiv 

strict principles pf law before a release can* opera^s upoiv 

his estate by way of enlargement, If. 87. 
If tfte feofffees bar theit entry iit some* cases contingent uses 

must fail, N. 90. 
The arguments of Mr. Pearne against the necessity of an 

entry by the 'feoffees in sdme cases where there"" H^s" been 

a disseisin, canvassed^ Ns> 90 and 69. 
Right of, sufficient to support a contingent iise, so as to 

pressTiV^ ita capacity of takifig effect^ Nv 9(i. p; VS^. 

EST4TESI. 

Substantial differences of, 46, 48. N. 83, 
Fraction of^ the lavr will not admit, 66; 

EXECUTORY DEVISES. 

The limits within which i}^Qy must vest and the reason of 
those limits, N. 150. p. 211. N. 131. p. 227. and'N. V40. 

Where a devise in fee is to commence after a term, the fee 
descends ^d continues in the heir in the iiiterim.,cN^. \^7'^ 

EXTENT, 

Would have been cKtinguiihed by the^statute in some cases 
but for the saving, 55, N. 107. 

FEE SIMPLE, 

Whether whepe anuse in fee is^^mited tb'arist^af^er'af fettn; 
the fee simj^e or am estatefiir years- onlyremains iti the 
je^or in the znean'time, &Si N. 13?, 

FEME. (See Ba^on aod Femes)) 

FEOFFEE, OR FEOFFEES TO' USES*. 

Estate of, is the substance of the estate 6£' cestui qne-tufm,, 48, 
Joint feoffees to theuse of on!e.ofitheBi^ 50^ 54t 

Whether 



Whether the estate of transfenred in abeyance in any case, 

49. N. 89. 
Their estatey tee. is v^ periilaiidn^ «sEltei|i flroitt' them &/ 

the act where future uses are limited^ N. l<^?v 
If eni&t&sd to' a<iPegTe& whore fiii(kii<e u^e^j are liihtte^P^ afnd- 

thc seisin divefted and not revestfed', 53, N. P02. 
An estate remains in the feoffees since the statute in some 

cases, N . 1 30. p . 220 m 295. 
Mr. Fearne's opinion to the contrary controvertedy N. ]S(>«« 
Their ei>try in some oases necessary iii order to the eseOa^i' 

ttdh of uses fry the statute, Ns. 69' alid^ 90^ 
A contrary, doctrine disputed^ ibid. 
tff' ah use to tti€ right heirs of the feoffee, 6^. 

FtCfFlftVftWT: 

The distinction betweeiv a feoffment to the use of ar mon'i^ 
will, and a feoffment to the use of suck pefsotls^ d» M 
shall appoint bj( hifr last will taken notice of^ N. BO; 

FIDEI COMMISSIO, 
lis resemblance to the use, 19, and N. 29. 

FINE. 

Wh^» <*ne ttt^gattts aft* si4is a«d* Befbi'e ehrolhleiif ftfvifesr ^ 
fine to the balf^gsaneo atid th^ th^Hargain'and sale ^tiroll- 
ed the bargainee in by the fine, N. 6. p. 172. 

FORM^DOW , 

Given against ce^^ui fZ£e u.9«, 28. 

ftiwieiti'tairhadi under the statute de datds, N. iT*. p; 188. 
Issue in tail might have beeii bafVed of, by tlie statute h 
Itfic?. n-F. but for the saving, N. 114. p. J 901 

FREEHOLD 

C'aWiOt be in*suspence, 39, 221. 

Is given by the law to the first comer rather than it should 
be in suspence, 39; 62: 

Doth< not- pass* by a bai^in ai^ sale b^fbiie enroliAtent^ 
N. 106. 

Some opinions upon this head controverted, ibid. 

Use of, cannot result to the person who conveys if an estate 
for)warrbeUfttfitfe*tb^hiffi, N. 130.- 

Where the use of the freehold will if not expressly Hlriited, 
result to a feoffor, &;c< and sjupport a contingent re- 
mainder, N. 130. 

Cannot be limited to commence aV/trtart> jtnddie reason of 
it> ibid^, p; 224. 

HEIR. 



8J* CONTENTS. 

HEIR. 

Of feoffee, suhpena did not lie against ori^nally, 23. 
When rcmediea, N, 39. 

Oversight of Mr. J. Blackstone and others noticed, ibitL 
Favour of the law unto, 35. 

INFANT 

May be seised to an use, 60. 

Feoffee cannot root up the feoffment after the use executed, 

ibid. Ns. 117 and 115. 
May destroy the feoffcnent and prevent the use where 

cohtingent, 60. N. 117. 
Distinction where tlie use is or is not first limited to the 

infant, N. 117. 
As to execution by the infant before the statute, 60, 
May limit an use, 69. 
Cannot avoid the use without avoiding the conveyance, ihid» 

N. 147. 
Distinction where the conveyance is not by the infant^ 

N. 147. 
Sargain and sale of, where good or not, or void, or only 

voidable, 69, N. 148. 
How executions by the statute of the estate of, differ from 

executions by the party at common law, Ns» 115 and, 

117. 
Uses limited by an infant on a fine or recovery, must be 

avoided by the infant during his infancy, and why, N, 

147. 
Perhaps, inspection,, under age would be sufficient to th^ir 

being avoided after full age, N. 147. 
Uses declared upon feoffments and other conveyances npt of 

record, may be avoided by him and his heirs at any time, 

ifnd» 
Sargain and sale of, where good and where not, 69. N. 149. 

INHERITANCE. 

Statute sometimes operates although no inheritance zn e»9«, 

- 44. N.73. 

INQUEST. 

Cestui que use at common law might have been sworn ufH>n, 

, 7.N.4. 

INTENTS. 
What so called in the books, 8. 

INTENTION, 



CONTENTS. 255 

INTENTION. 

Himitadoiis in use and devises cegulated bv, N. 118. p. 197. 
N. 130. p. 215. 

JOINTENANTS 

Shall be of an use althoagh not in esse when fi;rst liauted, 
6^, N. 1S2. 

JOINTURES/ 

Origin of, N. 105. 

Ordinance respecting in the statute^ 55, 

KING (the) 

_ » 

Cannot he seised to an use, 58. 

His title after office shall relate above an use on the seisin of 

person attainted and alien, 6f, N. 119. 
May limit and declare an use, 69. 
. The law does not permit him to take until office, Ns. 119 

and 127. 

LAND. 
Rent of, could not stand with, 18. 



Use of land and use of rent might stand together, 18* 
Lands were indiredly deviseable by a disposition of the use 
as well after as be&re the statute, N. 80* 

LEASE AND RELEASE. See Release. 

At common law, N. 87. 

Observations upon, N. 87* 

Modem conveyance by not valid upon strict legal principles 

without an entry by the lessee or rather bargainee lor a 

year, ibid, 

LEGISLATURE. See Statute. 

LIFE. 

Might have been an estate for, to an use before the sta- 
tute, 61. N. 125. 
An opinion to the contrary controverted, N. 125. 

LIMITATION. 

Per verba de prafinti or per verba de Juturo, distindion be- 
tween supported, N. ISO. 

The arguments of Mr. Fearne upon the subject canvassed, 
ibid. 

LORD. 

If entitled to the sulpasna in case cestui que use attainted, 1 2 
and N. 17. 

MATRIMONII 



t55 GOMTEKTS. 

MATRIMONII PRjELOCUTI C^US4' 

■ • • 

No affinity with uses, 24-. N. 41. , 

The statute works not in case of, 68 • 

Feoffors did not take the profits in case of, 25. 
An opinion to the contr^ury x^pn^veried, N. 46. 

MAINTENANCE. 

No mischief of maintenance from a trM^fer ^f the stApesna 
lit common law in case of <is^. i7> N^ 25. 

* 



MORTMAIN. 



» » 



Matters relating to i}ie ^tatu^e p^ and to ih^ use hsi^g 
made subject to, 8, '07, 2?, 38, W- ?9^ ftild *^» 



J • * t 



NOTICE; 

1/ Caused pa Wtce/)f cnmnu in case of an use, 15, 16. N. 39, 
Not so in common law cates and examples given> 14^ iS, 
and N. 22. 

OCCUPANT. 
May be seised to 911 use, N. H^^ 

OCCUPANCY* . 
The reason of occupancy, 39. 

. . ; . . OFFICE • 

Qe^bfjaiipD of th^ ^^ a;id conv^yatute in i}ie King'$ 4^e 

must both be found by, N. 1 19, 62. N. 127. 
In a few special cases he is entitled without, N. 1 19* 

PAROLP. 

As to limitations of ihe use, 8(c. by parole, 69* Ns» 5?0 aqd 
• 146 and p. 14,55. , , " ' 

* PARTICULAR ESTATE. . ^ ' 

Where it does not takiS effcdl, wheii Interest of remainder- 
, ja^p ija H$e (o compaence, 13. N- U^^* p- 198v 
Where it failed the remainder was vb^l in c^a^e <>f tjie 

tod, N, J18, 
But good la iasje of use and devises and the reason of tl^e 

difference,? bid, 
DetermiQftti<> of in law or in fact, N. 90. p. 156. 

4 PQSSeSWO 



CONTENTS. . W 

POSSESSIO FRATRIS. 
If there might havQ bc^^npf aa use, U. N« 10^ 

POSSIBIUTY. 

Noi executed by the statute^ 47. 

Where future uses are limited the feoffees have a poffibilily 
remainkij;, Ns. 9Q. and 102. 

PRECIPE. 

Bargainee good tenant to, before enrolment if afterwards 

enrolled, N. 106. 
Bargain and sale of tenant in tail will make a good tenant 

to, N. 114.. p. 193. 

PRIVITY 
Given by the law vf here it confers^any estate or possesion. 

N.2. ' " • 

PURCHASER. 
Ever favoured in our law, 36, 37. 

QUEEN, 
Cannot be seised to an use, 59^ N* 112. 

RECORD. 

Where the King is ctsitd que we both the conveyance an4 
. decIaraUon must be by matter pf record;^ 69» N. 127. 

REGRESS RE-ENTRY, 
If the feoflfees may make, 53 and N, 102. 

RELEASE BY WAY OF ENLARGEMENT, ' 

Whether it could operate upon the use at common law, 

6. N. 2. 
Privity of estate between the rele^or ^d releasee neces* 

sary to the operation of, N. 2. 
WojLild not upoR strict legal prindples operate upon a 

b^rgaki and sale for a yeaf under the statute without an 

entry by the bargainee, N. 87, 

REMAINDER AND REVERTER. (See C^mtingeat 

Remainders.) 

The consideration of those words as used in the s' Jitute, 46* 
A difference between an use in fiemainder and an use in 
, reverter, 47. 

# . ^1 X-emamder 



95% CONTENTS. 

Remainder in case 6f the land void where the particular 

estate fails, N. 118. 
But good notwithstanding in caiies of use and devises, ibid 
When it shall commence, where goo4> N» 118. 
Remainder contingent, not executed t9^^ use, 61. N. 124 

RENTS. 

Use of rent and use of land m\f(ht stand together, t^. 
Rent of land and the land itself cannot, toid; 
Use on rent charge granted de novo for life executed, 44. 
Touching execution of, by the statute, 54. 

RIGHTS. 

Only two ih our law, and what, 5. 

An use neither, ibid. 

Division of, in civil law, 9. 

I^ot executed by the statute, 43, 47. N. 69. 

Right ^ig^€, 68. 

SCINTILLA JURIS. 

Taken notice of, 49. 

The accuracy of Lord Bacon's opinion upon the subjeot 
questioned^ N. 90. 

SEISIN. 

There are but two seisins, and what, 44. 

If the statute gives a seisin in fact, 48 and N. $7. . 

Who may be seispd to an use, 58 to 62. 

Where the person seised and cettui que use is the same he 

shall be in by the statute, 64 to 68. 
Where the person seised, and cestui que use are diffe^ei^t 

persons and yet shfdl be in by the common law« 68. 
How it reverts tp the feofiees where future uses are limited, 

n;io2. ' . 

Of its coming to one tp whom a future use is limited, 6^. 

SUSPENCE. See Abeyance. 

TAIL. Tenant in. Estate tail. 

IF he may stand seised lo an use, 59 and N. 114. 

Could not have executed a perfect estate at oOmmon law, 

N. 114. p. 188. . . 

Tail estate cannot be re-pccupied out of a fee-simple, S6, 
If it may be by express limitation to the use of another, 

N. 114. 
Some opinions ^pon this subject canvassfed, ibid. 

TENURE. 

IVhethcr fhe use succeeded, 21, 22 and N. 3 j. 

4 . Had 



CONTENTS. 259^* 

Bad no influence in raising an use by construction wKere 
an express use was limited> N. 114. p. 193. 

SHJELLEY'S CASE. 

Rule in, takea notice of^ 64. N. 1S3. 
The principal works pointed out wherein the learning rc« 
spe9ting the rule is treated of, N. ISS. 

STATUTE, 

Merchant 55, N. 107. 

STATUTE OF USES 

Considered, 51, S3. 

Title of in the roll, 32. # 

——in course of pleading, ibid. 

Precedent of, 35. 

Preamble of, considered, 3$ to 42. . 

Whether intended to aboltfli conveyances to uses, 39 to 42>. 

^ and Ns. 62, 65 and 1 iO. 
Body of, expounded, 42. -N. 77. 
The savings in, taken notice of 51 to .5 5. 
What kind of seisin it gives, 48 and N. 87. ' 
Requisites to the operation of, N. 90. 



i » 



STATUTE of iRic. III.:- 

Intention of, N. 42. 

Whether the feoffment of cestui que uie under this statute 

avoided the intermediate acts of the first feofieesji 47^ 

48. N. 84. 
The saving in, how to be taken, N. 100. 
The necefuty of that saving, N. 1 14. p. 190. 

STATUTES. 
Some observations and rules respecting, 42i 51, 52. 

SUBPOENA, 

If it was assignable in case of use, 16, 17. N. 87. 

Not in case of bare trust, N. 25. . 

When first issued by the chancery, N. 5. " 

Why devised, ibid, and N. 32. 

When it was held to lie against the heir of the feoffee and 

some erroneous opinions upon the subject taken notice 

of, N. 39.^ 
If it lay originally against any other person than the feolfee 

himself, N. ^^ 



' 



f tt . CONTENTS. 



TRUST. 

A defihilion of a, 9. 
LawfuU what, 8. 
Unlawftil, what, tl(id. 

Uidawfiil, WAS originally the use, N« 6» 8^ 45 and 4S. 
An oppofite opinion controverted, ibidm 
Lawful never looked upon as uses, N. 7. 
An opinion that trusts were introduced before uses con- 
troverted, N, 8, 
Truft is the way to an me. Signification of the expreifion. 

Often used as a synonymous term with use before iSb» aUtute,. 
N. 75 and N, 125. p. 204. 

USE. 

Nature and definition of, from 5 to 9. N. 48f. 

WbalitUnel, 5(b8, 

What it is, 9. 

When taken notice of by the faw, 7. 

Parts of, 10. ' - 

Properties of, ihidi 

Was guided by conscience and utterly d^flfered from cases of 

possession, 10 to 19. N. 2. p. 73, 74. 
Whetherit might. change from one t^ another, 11, 12, and 

Isl. 13. 
^ consideration necessary to raise it> ai^d what a mQcient 
* one, 14. N. l^and 19. • 
As to the preserving of uses, 14 to 1 6. 
^ Were transferrable, 16, 17, and N. 27* 
.< Were devisable at common law, 11, N. 12. 
As to the extinguidmient of, 18. 
As to a precedent for, 19, 20. N. 29. 
As to the causes of, 21 . 
Commencement and first practice of, 21 to 24, Ns, 35, 41, 

46 and 47. 
Construction of, to feo(lbr when it commenced,^^, and 

N. 37; .. . . ^ ^ 

Whether it results by constiuction of law or chancery, N. 2. 
p. 73, 74. •* * . 
,N Where at common law, 22. 

Progxession of, in ccfurle of statutes, 24 to^9. 
Original of. 25, Ns. 4^, 29, 45 and 46» 
Statute of, considered, 3 1 , 33. 
^ Uses were exempted. fro^ aU titles iii law, *S7« 
' Whether the statute intended to abolish the practice of, S9 
to 42> and N. 62 and 63. 
. « - * Contingent, 



\ 



\ 



CONTENTS. ^61 

Contingent^ not executed by the statute, 43, 44 Ns. 71, 

76. 
Use cannot be to an use, and why, 44, N. 74. 
The ipoiition d<if(dnd«d, N. 74* 
Uses not linked to bodies natural not tzecuted, 44, .mai 

N. 76. 
Use givei form> 49, N. 102. p. 195. 
Who may be seised to, 58 to 62. 
Uses resulting, 63. Ns. 37. and 130. 
Shifting, 64. 

Who may declare and limit, 68. 
As to declarations of, by baron and fern e, 70. N. 1 50. 
In Vhat sense uses can be said to ensue the nature of the 

land, N. i 1 . 
Often spoken of before the sitatute under the words trwn or 

confidence, Ns. 75, and 125, p. 204. 
Property and quality of the use not drowned in the possession 

since the statute, N. 80. p. 141. Ns. 102 and 132. 
Distinction where the use is precedent or not, as to execu« 

tion by the statute, N. 117. 
U$e limifed in remainder when it may where roid as a 

remainder, take effect as a springing use, N. 130. 
The limits and restrictions of future springing and shifting 

uses, and the reason for those limits, N. 130. ps. 211, and 

212. N. 131. p. 227, and N. 140. 
An use limited to commence after a general dying without 

iiTue, void, as being too remote, although Lord fiacon put9 

the c^e as if good, 66, N. 140. 

VIE. 

EiUite pour autre, to an use. 61. N. 125. 

VILLEIN. 

Where enfeoffed to an use, the king's title related above the 
use, but a common person's not, 61, N. 130. 

Where Lord enfeoffed to the use of, the use arose not, 61. 
N. 121. 

UNCERTAIN PERSON. 

An estate to a person uncertain to an use not executed, 61 . 
An use to, not executed till the person be so esse, 63. 

USUS FRUCTUS. 
What in the civil law, 19, and N. 29. 

WARDSHIP. 
Wai given to the Lord of the heir of cexti» que tue, 23. ' 

WARRANTY 



36« CONTENTS* 

WARRANTY 

Was for the help of purdiasers, 36. 

Whether warranty extinguished a right of an use at coRt« 

monltkw or after the statute^ 1 Ric. III. 12^ andN. 14. 
Difference, as to warranty being destroyed, whether a person 

is in by the common law or the statute^ 67* 

WASTE. 
Action of^ against particular tenants, ,27. 

WILL. Tenancy at. 
Whether an use amounted to, 5. N. 2. 

« 

WILL. See devise also. 

Lands were indirectly devisable by a disposition of the use 
after the statute of uses, N. 80. 

A contrary opinion controverted, ibid. 

The distinction between a feoffment to the use of a man's 
will and a feoffment to the use of such persons as he shall 
appoint by his last will taken notice of, ibid. 



FINIS. 



pTintgd by W. Stratford, Crown-Court » Temple- Bar. 



>.. 



ERRATA AND ADDENDA. 

Page tl> ttdie bottom iascead of {b) intert Q>), 

i^ Line 9* put the.comma ^Sttx prewitJj% instead of after rtmenitn* 

1$ 19. read riT instead of r^. 

32 25* read est in inteodone. 

45 last line but one, place a comma after the word rmitd. 

48 last line, fill ap the blank with the word came* 

54 last line after substantive, add the word lavu 

55 and 6x, bottom of the pages, instead of Note 144, read Notcfl45« 
Note 76, Line 7. ttud feoffee instead of feoffor. > 

Page 141 6. a new sentence to commence with the ¥rord H^enm 

160 last line but six for persons read person, 
2Q5 4. place two inverted commas after the word good, to denoti 

the end of the quotation* 
243 5* after 570 add, and Zoucb and Parsons, 3 Burr* 1794* 
243 %!• after 1794 add, and Clougb and Chugb, 3 Wtodnvn^ 

453 ^* ^*^*^ 



' Lately was published by the same Author, 

AVD MAY BE HAD OF 

W. CLARKE AND SONS, PORTUGAL STREET, 

AND 

BROOKE AND CLARKE. BELL-YARD, 
Price Ss. 6d. in boards, 

OBSERVATIONS 

OK THE 

RULES OF DESCENT ; 

AND OK 

THE POINT OF LAW, 

Whether the Brother of a Purchaser's pat^nal Grand- 
mother shall be preferred in the Descent, to the 
Brother of the paternal Great Grand- 
mother of a Purch^iser ? 

IN DEFENCE OF 

' Mr. Justice MAhWOOD's POSITION; 

AND IN REPLY 

TO THE ADVOCATES FOR THE 

DOCTRINE of Mr. Justice BLACKSTONE, 

TOGETHER WITH ', 

SOME REFLECTIONS 

ON THE 

SUBJECT OF OUR LAW'S DISALLOWANCE 

or 

JLINEAL ASCENT. 



I 



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.1.1. • ii.-Wigfc.avji^my-k„t..wf>' rf_>j<;gi_r''-v-j^ 

DL ABAHTr 

Tlw fMidIno upon Itw Otitulo o 

Stmford Lsw LM 





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